UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 95-5589

MICHAEL ANDREW MASON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                   No. 95-5608

MICHAEL ANDREW MASON,
Defendant-Appellee.

Appeals from the United States District Court
for the Western District of Virginia, at Charlottesville.
Glen M. Williams, Senior District Judge.
(CR-94-61)

Argued: December 6, 1996

Decided: February 12, 1997

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and
DAVIS, United States District Judge for the District of Maryland,
sitting by designation.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per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

_________________________________________________________________
COUNSEL

ARGUED: Christopher Campbell Booberg, MORCHOWER, LUX-
TON & WHALEY, Richmond, Virginia, for Appellant. Donald Ray
Wolthuis, Assistant United States Attorney, Roanoke, Virginia, for
Appellee. ON BRIEF: Michael Morchower, MORCHOWER, LUX-
TON & WHALEY, Richmond, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Carolyn Furrow, Third Year Law
Student, Roanoke, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Michael Andrew Mason was charged with one count of
conspiracy to possess with intent to distribute cocaine base in viola-
tion of 21 U.S.C. § 846 and nine counts of possession with intent to
distribute cocaine base or distribution of cocaine base in violation of
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, based on Mason's participa-
tion in a conspiracy to import cocaine and cocaine base from Wash-
ington, D.C. and parts of Virginia for distribution in the Harrisonburg
and Staunton, Virginia, areas. The government alleged that Mason
was a mid-level drug dealer in the conspiracy who distributed smaller
quantities of crack cocaine to lower level dealers and, on occasion,
negotiated and brokered distributions.

On September 29, 1994, Mason was granted pretrial supervision,
with conditions that included that he have no contact with his co-
defendants. At a continuation of bond hearing on January 3, 1995,
Deputy Jo Ellen Emsweiler of the Rockingham County Sheriff's
Department testified that she and Investigator Kurt Boshart of the
Harrisonburg Police Department saw Mason in an automobile with
co-defendant Justin Mason on November 8, 1994. However,

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Emsweiler testified that she did not see where Michael and Justin
Mason were going or where they were coming from, and because
Boshart had taken the notes of the incident, Emsweiler could not
recall the type of car or the license plate number. J.A. at 47-49. Fur-
thermore, the surety for Michael Mason's bond testified that Michael
Mason was elsewhere at the time in question. Therefore, the court
found that there was insufficient evidence to find that Mason violated
the terms of his pretrial release. J.A. at 63-64.

During a jury trial, the government established that 86.39 grams of
cocaine base were discovered in Mason's car, and several of Mason's
co-defendants testified detailing Mason's role in the conspiracy. In
addition, Officer Boshart and Deputy Emsweiler testified that they
saw an illegal drug transaction between Michael and Justin Mason
and a government informant. However, Michael Mason testified that
he was not the person seen by the officers. When Mason's attorney
attempted to question Mason on redirect examination regarding the
bond revocation hearing, the district court sustained the government's
objection to that line of questioning. Mason was found guilty of one
count of conspiracy and one count of possession with intent to distrib-
ute or aid and abet possession with intent to distribute, but was acquit-
ted on all other counts.

The Presentence Report stated that Mason had an offense level of
34 and a criminal history category of I and determined that under the
Sentencing Guidelines the sentencing range was 151 months to 188
months. However, the district court departed downward from the
guidelines and sentenced Mason to 120 months.

Mason appeals, arguing that his Sixth Amendment right to confron-
tation was violated by the district court's exclusion of testimony
regarding the bond revocation hearing. The United States cross-
appeals, arguing that the district court erred in granting a downward
departure from the sentencing guidelines range.

I.

During redirect examination, Mason's counsel attempted to ques-
tion Mason regarding the bond revocation hearing. According to
Mason's counsel, the failure of the district court to find Mason in vio-

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lation of the terms of his parole demonstrated that Emsweiler and
Boshart had "misidentified" Mason in the past. However, the district
court sustained the government's objection, calling the bond revoca-
tion hearing a "peripheral matter" and concluding that defense counsel
had not laid a foundation for a misidentification argument during
cross-examination of Emsweiler and Boshart. J.A. at 226-28.

The district court did not violate Mason's right to confront wit-
nesses brought against him. The government's mere failure to carry
its burden of proving a bond violation does not, in and of itself, estab-
lish a "misidentification" of Mason, and Mason failed to develop on
cross-examination of Emsweiler and Boshart any foundation for an
argument that these officers had previously misidentified him. As the
district court correctly concluded that the bond revocation hearing
was merely a "peripheral matter."

II.

Under 18 U.S.C. § 3553(b), the district court must impose a sen-
tence within the range provided by the sentencing guidelines "unless
the court finds that there exists an aggravating or mitigating circum-
stance of a kind, or to a degree, not adequately taken into consider-
ation by the Sentencing Commission in formulating the guidelines
that should result in a sentence different from that described." No
such circumstance exists in this case.

The district court stated clearly that the probation officer correctly
determined the amount of the drugs to be attributed to Mason. J.A. at
287. In so doing, the district court noted that, under the Sentencing
Guidelines, a preponderance of the evidence test applies to attribution
of drug quantities to the defendant. Therefore, the drug quantities
attributed to Mason were greater than the quantities seized in the two
transactions for which Mason was convicted. As a result, Mason's
sentencing range was the same as it would have been had he been
convicted on all of the charges against him. The court then departed
downward from the guidelines range, stating:

          If the defendant had been convicted on every one of these
          counts, we would be in the exact same posture . . . .

                     4
           Now the jury, of course, didn't know this. An ordinary
          citizen wouldn't understand it. This is the way the sentenc-
          ing guideline works . . . . And that bothers me about it. But
          I have to find in all conscience that the probation officer has
          correctly computed in a reasonable manner the amount of
          the drugs to which he should be attributed.

J.A. at 287-88. The court continued:

          There is nothing mentioned in [the Presentencing Report]
          about downward or upward departure. Nothing is argued on
          either side. Based on that -- however, I am going to depart
          downward and I don't know whether this will stand up or
          not. But I want to give my reasons.

           It's been speculated here by the attorneys on both sides
          as to what the jury was thinking in this case and I happen
          to by accident be walking out with the jury after this case
          and I overheard some remarks. It was the feeling of this jury
          . . . [that] they didn't want this young man to be serving that
          much sentence and they found him not guilty on certain
          counts giving him the benefit of the doubt thinking they
          were giving him a less harsh sentence. . . .

           I don't know of any law, frankly, permitting a downward
          departure. But the comments that were made by the jury was
          they hoped that this young man wasn't going to be receiving
          the amount of time up in the range that they had heard dis-
          cussed in this case. One of them even asked me -- had iden-
          tified me as he happened to be walking out. What kind of
          sentence will this young man get? And I told him, you
          know, I couldn't even speculate on it. I said, you know, it's
          based on guidelines.

J.A. at 287-90.

As the district court itself recognized, its downward departure was
not based upon any legally cognizable mitigating factor not taken into
account by the sentencing guidelines, and, accordingly, was unautho-

                    5
rized. As the parties suggest, only two mitigating factors can reason-
ably be discerned from the district court's explanation -- that the
court departed downward because the guideline range did not reflect
the fact that Mason was acquitted on some of the counts, or that the
court departed downward because of Mason's age. Neither of these
reasons provides a legally cognizable basis for downward departure.

As the district court candidly acknowledged, the amount of the
drugs was correctly computed. The fact that Mason would have
received no greater sentence had he been convicted on additional
counts does not provide a basis for departing from the proper guide-
line range for those counts on which Mason was convicted, because
we have held that the Sentencing Guidelines provide for consideration
of relevant conduct even when the defendant was not charged with,
or has been acquitted of, that conduct. United States v. Mullins, 971
F.2d 1138, 1143-44 (4th Cir. 1992); United States v. Isom, 886 F.2d
736, 739 (4th Cir. 1989).

Nor could Mason's age provide a basis for downward departure
because we have held that the age of the offender has been adequately
taken into account by the guidelines and therefore is not a permissible
grounds for departure. United States v. Summers, 893 F.2d 63, 69 (4th
Cir. 1990); see U.S.S.G. § 5H1.1 ("Age (including youth) is not ordi-
narily relevant in determining whether a sentence should be outside
the applicable guideline range. Age may be a reason to impose a sen-
tence below the applicable guideline range when the defendant is
elderly and infirm and where a form of punishment such as home con-
finement might be equally efficient as and less costly than incarcera-
tion."). In fact, in Summers we vacated the district court's downward
departure because the district court "clearly erred" in basing its depar-
ture on the fact that the defendant was twenty-three years old, the
same age as Mason was when the presentence report was filed.
Summers, 893 F.2d at 69; J.A. at 300-01.

CONCLUSION

For the reasons stated herein, we affirm the appellant's conviction,
but we vacate the sentence and remand to the district court for sen-
tencing consistent with this opinion.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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