UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4035

MANUEL RICHIEZ,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., District Judge.
(CR-95-287)

Submitted: August 18, 1998

Decided: September 2, 1998

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

David B. Smith, Greensboro, North Carolina, for Appellant. Walter
C. Holton, Jr., United States Attorney, Timika Shafeek, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

A jury convicted Manuel Richiez of conspiracy to possess with
intent to distribute cocaine base in violation of 21 U.S.C. § 846
(1994). He was sentenced to 235 months' imprisonment plus five
years of supervised release. Richiez timely noted an appeal from the
district court's order. Finding no error, we affirm.

Richiez contends that the district court abused its discretion when
it admitted a cassette tape into evidence and published corresponding
transcripts which contained conversations between himself and Gov-
ernment witness Joyce Williams. He contends that the Government
failed to establish an adequate foundation for the admission of these
pieces of evidence because the original tape recording was not before
the court; rather, the tape was a composite that was made by the pros-
ecutor.*

We review the district court's admission of tape recordings for an
abuse of discretion. See United States v. Capers , 61 F.3d 1100, 1106
(4th Cir. 1995), cert. denied, 517 U.S. 1211 (1996). The district court
also has the discretion to permit the jury to use a transcript as a guide
in following the presentation of tape recorded evidence. See id. at
1107. The proponent of an audio tape bears the burden of establishing
that the recording is authentic. See United States v. Branch, 970 F.2d
1368, 1371 (4th Cir. 1992). Under Fed. R. Evid. 901(b)(5), a tape
recording can be authenticated if the proponent establishes the "iden-
tification of a voice, whether heard firsthand or through mechanical
. . . recording, by opinion based upon hearing the voice at any time
under circumstances connecting it with the alleged speaker." We will
only find error when "the foundation for admission is clearly insuffi-
cient to insure the accuracy of the recording." Capers, 61 F.3d at 1106
(quoting United States v. Clark, 986 F.2d 65, 68 (4th Cir. 1993)).
_________________________________________________________________

*The composite tape contained the conversations in their entirety;
however, conversations between the witness and third parties were
removed from the tape.

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To authenticate the tape recording, the Government presented the
testimony of four witnesses, including Joyce Williams, the person to
whom Richiez was speaking on the tape recording, Randall Lamont
Pharr, Richiez's co-defendant, Michelle Dones, one of Richiez's cus-
tomers, and Wayne Kowalski, the Drug Enforcement Administration
agent who arranged for the tape recordings. Each of the witnesses tes-
tified that the voice on the tape recording belonged to Richiez. Wil-
liams also testified that she bought a tape recorder to tape the
conversations between herself and Richiez. She stated that the
recorder accurately recorded the conversations and that she mailed the
tapes to Kowalski, who sent back transcripts of the conversations. She
testified that the transcripts were accurate, and that although she did
not believe that the tape identified as Government's Exhibit 7 was the
exact tape that she had made, she stated that the tape contained the
same conversations that the original tape contained. In light of this
testimony, we find that the foundation for admission to establish the
accuracy of the recording was not clearly insufficient. See id. Accord-
ingly, the district court did not abuse its discretion when it admitted
the tape recordings into evidence and published the transcripts. See id.
at 1106-07.

Richiez also contends that the district court should have departed
downward under U.S. Sentencing Guidelines Manual § 5H1.4 (1997),
because of his serious medical condition. Richiez states that he has
kidney failure and must undergo dialysis three times per week. Thus,
he contends that his imprisonment would essentially be a death sen-
tence.

A district court's decision not to depart from the sentencing guide-
lines is not subject to appellate review unless the refusal to depart is
based on the mistaken belief that the court lacked the authority to
depart. See United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.
1990). There is no evidence in this case that the court was mistaken
as to its authority to depart from Richiez's guideline range; rather, it
is clear that the sentencing judge was aware that he could grant a
departure under appropriate circumstances. However, the judge found
that Richiez's health problems were not extraordinary enough to war-
rant such action. See United States v. Jones, 18 F.3d 1145, 1147-48
(4th Cir. 1994). Thus, we will not review his decision not to depart
downward.

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Accordingly, we affirm Richiez'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

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