UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 01-4250
LEWIS THOMAS CORNELL,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
                William L. Osteen, District Judge.
                            (CR-00-204)

                  Submitted: December 11, 2001

                      Decided: December 26, 2001

    Before WILKINS, NIEMEYER, and MOTZ, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Michael W. Patrick, Chapel Hill, North Carolina, for Appellant. Ben-
jamin H. White, United States Attorney, Clifton T. Barrett, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                     UNITED STATES v. CORNELL
                              OPINION

PER CURIAM:

   Lewis Cornell appeals his jury conviction for one count of conspir-
acy to distribute in excess of fifty grams of cocaine base, in violation
of 21 U.S.C.A. §§ 841(b)(1)(A), 846 (West 1999), and his resulting
360-month sentence. Finding no merit to Cornell’s claims, we affirm
his conviction and sentence.

   Cornell contends the district court erred by denying his motion to
suppress wiretap evidence because the Government’s application and
accompanying affidavit did not contain sufficient facts to satisfy 18
U.S.C. § 2518(1)(c) (1994) and to support the district court’s finding
of necessity under § 2518(3)(c). Under § 2518(1)(c), a wiretap appli-
cation must contain "a full and complete statement as to whether or
not other investigative procedures have been tried and failed or why
they reasonably appear to be unlikely to succeed if tried or to be too
dangerous." The burden upon the government "to show the inade-
quacy of normal investigative techniques is not great, and the ade-
quacy of such a showing is ‘to be tested in a practical and common
sense fashion.’" United States v. Smith, 

, 1297 (4th Cir.
1994) (quoting United States v. Clerkley, 

, 714 (4th Cir.
1977)).

   The affidavits in support of the application presented extensive
detail regarding various investigative techniques that had been tried,
and the reason for their failure, and those that were not possible in
light of the investigative goals. These included: use of informants,
material from prior search warrants and other investigative data, phys-
ical surveillance, toll record and pen register analysis, use of the
grand jury, undercover investigation, and other subscriber informa-
tion. The affidavit explained that through these procedures, law
enforcement authorities had been able to gather a limited amount of
evidence concerning the organization but could not determine the
identities of other co-conspirators and sources.

   The affidavit also explained that such techniques as introducing
undercover agents, employing physical surveillance, and search war-
rants would not be successful in disclosing the nature of the conspir-
                       UNITED STATES v. CORNELL                        3
acy and those involved. Because the application and affidavit
provided specific factual information as to how certain investigative
methods had been employed with limited success and how others
were unlikely to succeed, we find the Government provided sufficient
facts from which the issuing court could reasonably have concluded
a wiretap was necessary. Thus, we find the district court did not err
in denying Cornell’s motion to suppress.

  Cornell raises two claims based upon Apprendi v. New Jersey, 

(2000). First, he argues his conviction must be overturned
because 21 U.S.C. §§ 841, 846 are unconstitutional in light of
Apprendi. We find this argument meritless. See United States v.
McAllister, ___ F.3d ___, 

(4th Cir. Nov. 8, 2001)
(No. 00-4423).

   Cornell also argues that because mens rea is an element of the
offense under § 841(a), it also extends to all elements of the offense,
including drug quantity. Thus, Cornell argues the district court erred
because the jury was not instructed to convict him only if it found he
intended to distribute a specific quantity of crack. Because this issue
was not raised at trial, it is reviewed for plain error. United States v.
Olano, 

, 731-32 (1993).

   We find Cornell’s argument meritless. The § 841(b) sentencing
provisions only require the government to prove the offense involved
a particular type and quantity of controlled substance. The indictment
charged Cornell with conspiracy to distribute in excess of fifty grams
of cocaine base. The district court specifically instructed the jury to
find whether the conspiracy involved the intention to distribute more
than fifty grams of cocaine base, and the jury specifically found the
conspiracy involved more than fifty grams of cocaine base. This pro-
cedure fully complied with the mandate of Apprendi. The scope of
Cornell’s agreement in the conspiracy is merely a sentencing factor,
see USSG § 1B1.3, which does not increase the statutory maximum
sentence. Therefore, it is not required to be charged in the indictment
and proven beyond a reasonable doubt. United States v. Promise, 

, 157 n.5 (4th Cir. 2001) (en banc), petition for cert. filed,
Sept. 20, 2001 (No. 01-6398). Because the record demonstrates drug
quantity was charged in the indictment and determined by a jury
4                    UNITED STATES v. CORNELL
beyond a reasonable doubt, the district court did not commit plain
error.

  We therefore affirm Cornell’s conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

                                                        AFFIRMED