Rehearing granted, April 20, 2005



                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4100



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


PRINCIBE LAGUERRE, a/k/a Big Man,

                                             Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. James C. Turk, Senior
District Judge. (CR-02-30098)


Argued:   October 29, 2004                   Decided:   May 12, 2005


Before WILKINS, Chief Judge, and TRAXLER and GREGORY, Circuit
Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


ARGUED: Aaron Lee Cook, Harrisonburg, Virginia, for Appellant.
Timothy J. Heaphy, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
ON BRIEF: John L. Brownlee, United States Attorney, Roanoke,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

       On October 30, 2003, a jury convicted Appellant Princibe

Laguerre (“Laguerre”), a/k/a “Big Man,” of conspiracy to distribute

and possession with intent to distribute over fifty grams of

cocaine base and five kilograms or more of cocaine hydrochloride in

violation    of   21   U.S.C.     §§   841(a)(1),       846   (2000).        Laguerre

challenges his conviction and his subsequent sentence.                     We agree

that   the   district    court     erred       in   admitting   certain      exhibits

concerning    telephone        transactions         without   the   proper    notice

required by the Federal Rules of Evidence; but we find the error

harmless and thus affirm his conviction.                However, consistent with

United States v. Hughes, 

(4th Cir. 2005), our recently

published opinion giving guidance on the application of United

States v. Booker, 

(2005), we find plain error in

sentencing, exercise our discretion to notice the error, vacate the

sentence, and remand to the district court for resentencing.



                                         I.

       Laguerre first came to the attention of the Virginia State

Police after they apprehended Barbara Ferguson (“Ferguson”) for

drug   trafficking      when    she    sold     drugs    to   undercover     agents.

Ferguson became a confidential informant (“CI”) and engaged in four

transactions with Laguerre that led to his arrest.                           Ferguson

facilitated the transactions by calling Laguerre and other dealers


                                           2
on their cell phones from her cell phone. These conversations were

recorded.

      During   Laguerre’s    three-day      trial,      several    alleged   co-

conspirators, as well Laguerre himself, testified.                   These co-

conspirators and Laguerre used cell phones to communicate with one

another.    The Government also presented testimony from Nate Adams

(“Adams”), a Drug Enforcement Agency (“DEA”) Intelligence Analyst,

who testified that he gathered subscriber information and toll

records regarding certain cell phone numbers provided to him by the

DEA Special Agent involved in the investigation.1                  Ferguson had

provided some of the cell phone numbers for the investigation.

      From the toll records of the original cell phone numbers,

Adams obtained toll records and subscriber information for numbers

that frequently contacted the original numbers.               He did this by

sending    administrative    subpoenas     out     to   Sprint,    the   service

provider for these numbers.2     Adams testified that he then took the

information from the administrative subpoenas and entered it into

a   database   of   phone   numbers.       Adams    then   began    to   testify

concerning two summary charts that he had prepared using the toll



      1
      Toll records consist of information on every phone number
called from a particular cell phone number. Subscriber information
consists of the name and address of the subscriber from the record
on file with the service provider.
      2
      Adams found out that Sprint was the service provider for the
numbers through a database called the National Subpoena Registry.


                                       3
records. One chart showed the volume of calls between Laguerre and

other alleged co-conspirators and used photos of each person with

Laguerre’s photo enlarged and outlined in red in the center of the

other photographs.      J.A. 133, 145-A.        The other chart showed the

volume of calls between Laguerre and Ferguson on the dates of the

four charged transactions.          

     During Adams’s testimony, Laguerre’s counsel made several

objections   to   the   use    of    toll    record   information    from   the

administrative subpoenas and to the summary charts.                 The court,

however, overruled each objection and allowed the admission of both

charts.   Laguerre thereafter moved for judgment of acquittal by

challenging the admission of the summary charts but the judge

denied this motion.

     On January 21, 2004, the judge sentenced him, pursuant to the

U.S. Sentencing Guidelines, to 360 months of incarceration.

Laguerre filed this timely notice of appeal on January 30, 2004.



                                       II.

     We review the admission of evidence for abuse of discretion.

United States v. Weaver, 

, 313 (4th Cir. 2002).

However, evidentiary rulings are subject to further harmless error

review.   

such review, a ruling will be found

harmless if we are able to conclude, “‘with fair assurance, after

pondering all that happened without stripping the erroneous action


                                        4
from the whole, that the judgment was not substantially swayed by

the error.’”   

United States v. Brooks, 

, 371 (4th Cir. 1997)).

     The interaction of Federal Rules of Evidence 803(6), 902(11)

and 1006 is at issue in this case.    Here, the Government sought to

take toll records excepted from the hearsay rule under Rule 803(6)

and authenticated under Rule 902(11) and summarize them into a

chart pursuant to Rule 1006.   Laguerre argues that the charts were

built on inadmissible hearsay and unauthenticated evidence, that

the Government failed to give the notice required by Rule 902(11),

and that the Government failed to provide an opportunity to inspect

the underlying documentation for the charts pursuant to Rule 1006.



                                 A.

     Rule 803(6) is an exception to the hearsay rule for business

records that permits their introduction as long as they satisfy

certain requirements.     See Fed. R. Evid. 803(6).     Rule 803(6)

references Rule 902(11), which permits authentication of these

records by certification of the custodian or other qualified

person, and thus eliminates the need for foundation testimony at

trial.   See Fed. R. Evid. 902(11).    However a notice requirement

exists when offering a business record by certification.    

the evidence must give the opposing party notice of

the intention to offer that evidence, and must make the record and


                                  5
the declaration available for inspection, “sufficiently in advance

of their offer into evidence to provide an adverse party with a

fair opportunity to challenge them.” 

“intended

to give the opponent of the evidence a full opportunity to test the

adequacy of the foundation set forth in the declaration.”         Fed. R.

Evid. 902(11) advisory committee’s note to 2000 amendments.

       Rule 1006 permits the admission of charts into evidence as a

surrogate for underlying voluminous records that would otherwise be

admissible into evidence.     United States v. Janati, 

,

272 (4th Cir. 2004).       Its purpose is to reduce the volume of

written documents that are introduced into evidence by allowing in

evidence accurate derivatives.           

v.

Bakker, 

, 736 (4th Cir. 1991)).       While Rule 1006 does

not require that the underlying documents actually be introduced

into evidence, they must be available to the opposing party for

examination and copying at a reasonable time and place.           

       Toll records clearly qualify as business records under Rule

803(6).    See United States v. Wills, 

, 490 (4th Cir.

2003)   (cell   phone   records   admissible   under   business   records

exception).     However, as the Government conceded during oral

argument, some of the records were based on hearsay because some of


                                    6
the original phone numbers from which the records were produced

were obtained by Adams through other government agents or through

various computer databases.3 Additionally, for the toll records to

be   admissible   under   Rule   803(6),   they   must   be   authenticated

pursuant to Rule 902(11), which requires both that written notice

be given and that the records be available in advance of their

admission into evidence.         The Government did not give Laguerre

written notice of its intention to use the toll records and thus

they were not properly authenticated.4

      Similarly, the Government did not make the toll records

available for examination or copying pursuant to Rule 1006.             In

addressing Rule 1006, we have repeatedly noted that “it does

require that the documents be made available to the opposing party

for examination and copying at a reasonable time and place.”

; 

; United States v.

Strissel, 

, 1164 (4th Cir. 1990).




      3
      The rest of the original phone numbers came into evidence
through the testimony of Ferguson, who had personal knowledge of
calling these numbers, and thus were not hearsay.
      4
      While the Government argues that defense counsel had access
to these records through the Government’s “open file policy,”
Laguerre’s counsel states that the records were not in the open
file. Without any evidence showing that the records were in the
open file, the court must assume that they were not. Moreover, the
Government did not provide the proper written notice.

                                     7
                                    C.

     Despite these errors, under the harmless error standard of

review, the court must uphold an erroneous evidentiary ruling if we

conclude “after pondering all that happened without stripping the

erroneous   action   from   the   whole,   that    the   judgment   was   not

substantially swayed by the error.”          

.

Here, Ferguson, the CI, testified against Laguerre concerning the

drug transactions and several of Laguerre’s co-conspirators also

testified against him.      While the charts visually represented the

conspiracy to the jury, the testimony of Ferguson and the co-

conspirators established its existence.           Therefore, we find that

the judgment was not substantially swayed by the error in light of

the Government’s presentation of ample other evidence of Laguerre’s

guilt.



                                   III.

     Laguerre also presents a Sixth Amendment challenge under

Booker. The jury found Laguerre guilty of conspiracy to distribute

and possession with intent to distribute over fifty grams of

cocaine base and five kilograms or more of cocaine hydrochloride.5


     5
      We note that while the superseding indictment charged
Laguerre with one count of conspiracy to distribute and possession
with intent to distribute over fifty grams of cocaine base and five
kilograms or more of cocaine hydrochloride, J.A. 23, and the
Judgment in a Criminal Case states that Laguerre was found guilty
of this count, 

jury’s verdict form contains a
discrepancy. Specifically, the jury’s verdict form states that the

                                    8
At sentencing, the district court, who used the recommendation of

the Presentence Investigation Report as to drug amount, found

Laguerre responsible for 1.5 kilograms of cocaine base (more than

the amount necessarily found by the jury’s verdict), which yielded

a base level offense of 38.       The district court then added three

(3) points for Laguerre’s role in the offense and found the total

offense level to be 41.        The enhancements to Laguerre’s sentence

were based on facts found by the district court, not the jury.

With these enhancements, the district court sentenced Laguerre to

360 months.

     As Laguerre has raised his Booker objection for the first time

on appeal, we review this issue under plain error analysis, which

our recent decision in Hughes governs.         Under Hughes, the district

court   plainly   erred   in   imposing   a   sentence   on   Laguerre   that

exceeded the maximum allowed under the guidelines based on the

facts found by the jury alone.      

.       Thus, we

vacate Laguerre’s sentence and remand for resentencing “consistent

with the remedial scheme set forth in Justice Breyer’s opinion for

the Court in Booker.”      

found Laguerre guilty of conspiracy to distribute and
possession with intent to distribute over fifty grams or more of
cocaine base and less than five kilograms but more than five
hundred grams of cocaine hydrochloride. Record on Appeal, Doc.
Entry # 65.

                                     9
                              IV.

    For the reasons set forth above, the judgment of the district

court is

                                               AFFIRMED IN PART,
                                                VACATED IN PART,
                                                   AND REMANDED.




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