                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Fitzpatrick and Annunziata
Argued at Richmond, Virginia


DAVID EUGENE WHITE
                                           MEMORANDUM OPINION * BY
v.         Record No. 1998-96-2          JUDGE ROSEMARIE ANNUNZIATA
                                             SEPTEMBER 23, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF KING GEORGE COUNTY
                   James W. Haley, Jr., Judge
          Andrea C. Long (Charles C. Cosby, Jr.; Boone,
          Beale, Carpenter & Cosby, on brief), for
          appellant.

          Eugene Murphy, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Appellant, David Eugene White, was convicted by a jury of

three counts of cocaine distribution in violation of Code

§ 18.2-248.   On appeal, he contends that the evidence was

insufficient to support his convictions and that the trial court

erred in failing to follow the sentencing guidelines.     We

disagree and affirm his convictions and sentences.

                                  I.

     Under familiar principles, we review the evidence in a light

most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.     E.g., Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

     Investigator Norris directed an undercover operation
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
targeting local drug dealers.   Norris engaged Detective Banks, an

officer from a neighboring jurisdiction, to conduct undercover

drug buys.   On three occasions during a two-week period, Banks

purchased crack cocaine from an African-American male he

identified as appellant.   Each of the transactions occurred at a

trailer which Norris knew to be appellant's residence, and, at

each transaction, Banks identified a vehicle which was registered

to appellant.   Banks attempted approximately ten other undercover

drug buys from different subjects during that two-week period,

all but one of whom were African-American.
     Banks had not seen appellant in person prior to the events

in question, but Norris had shown Banks photographs of certain

"target" suspects, one of whom was appellant.   At the first of

the three drug transactions at appellant's residence, Banks

recognized the seller as the man in the photograph of appellant

that Norris had shown him.   Banks testified that he had no

difficulty seeing inside the well-lit trailer, where the

transactions occurred, and that, during the transactions, he

stood face-to-face with the seller and made direct eye contact

with him from a distance of three feet.   Banks testified that he

remained in the seller's presence for one to five minutes during

the transactions.   At trial, Banks could not recall the address

of the trailer, but he identified a photo of it.   At trial, Banks

repeatedly and unequivocally identified appellant as the man who

sold him crack cocaine on each of the three occasions.




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     The jury convicted appellant of three counts of cocaine

distribution and recommended sentences of thirty-five years plus

$100,000 for the first count and life plus $500,000 for each of

the second and third counts.   Appellant requested a presentence

report, and the imposition of sentence was postponed.    The

sentencing guidelines recommended a range midpoint for prison

time of one year and seven months.     During his sentencing hearing

before the court, appellant admitted that he had made

approximately five hundred cocaine sales during the year

preceding his arrest.   The trial court suspended both life

sentences and both $500,000 fines, fifteen years of the

thirty-year sentence, and $50,000 of the $100,000 fine.    In

imposing twenty years of active time and a $50,000 fine, the

court stated,
          Mr. White, you are not a young man who sold
          drugs once. You were a drug dealer, and a
          drug dealer on a massive scale. By your own
          testimony, at least, for one year, you made
          five hundred drugs sales. You were a major
          drug dealer here in King George County.


                                 II.

     Through Banks' testimony at trial, the Commonwealth

established that appellant sold crack to Banks on three

occasions.    If Banks' testimony was believed, it was clearly

sufficient to support appellant's convictions under Code

§ 18.2-248.    See Code § 8.01-680; Traverso v. Commonwealth, 6 Va.

App. 172, 176, 366 S.E.2d 719, 721 (1988) (explaining that a

jury's verdict will not be set aside unless it appears that it is


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plainly wrong or without evidence to support it).   Appellant

contends that the evidence is insufficient, however, because

Banks' identification of him as the seller was "suspect."     We

disagree.

     Banks had ample opportunity to observe the man who sold him

drugs during the course of the three transactions, and Banks'

identification of appellant as the seller is bolstered by

evidence that he observed the seller at appellant's house and

driving appellant's car.   To whatever extent Banks' repeated and

unequivocal identification of appellant as the man who sold him

drugs was "suspect," the jury found otherwise.   We are bound by

the jury's determination, see Robertson v. Commonwealth, 12 Va.

App. 854, 857, 406 S.E.2d 417, 419 (1991) ("The credibility of

all witnesses and the weight accorded their testimony are matters

solely for the fact finder, who has the opportunity of seeing and

hearing the witnesses."), unless Banks' identification was

somehow "`inherently incredible, or so contrary to human

experience as to render it unworthy of belief.'"    See id. at 858,

406 S.E.2d at 419 (citation omitted).   We find it was not.

     Appellant next contends that the trial court erred in

failing to sentence him to an active term of incarceration

commensurate with the discretionary sentencing guidelines'

recommendation.   We disagree.   "The guidelines are not binding on

the trial judge; rather, the guidelines are merely a `tool' to

assist the judge in fixing an appropriate punishment."     Belcher




                                  4
v. Commonwealth, 17 Va. App. 44, 45, 435 S.E.2d 160, 161 (1993).

"[W]hen a statute prescribes a maximum imprisonment penalty and

the sentence does not exceed that maximum, the sentence will not

be overturned as being an abuse of discretion."    Abdo v.

Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977).      The

sentences imposed by the trial court here were within the range

set by the legislature.   See Code § 18.2-248(C) (providing

maximum sentence of forty years plus $500,000 for first offense

and life plus $500,000 for subsequent offenses).   Moreover,

appellant's admission during the sentencing hearing to having

made approximately five hundred cocaine sales during the year

preceding his arrest provided the court ample justification for

deviating from the guidelines recommendation.   In short, there

was no abuse of discretion in the present case.
     Accordingly, appellant's convictions and sentences are

affirmed.

                                                             Affirmed.




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