Panel rehearing granted and rehearing en banc
denied by order filed 10/30/00
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                              No. 99-4899

LATASHA MARIE SMITH,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-98-37)

Submitted: April 10, 2000

Decided: September 20, 2000

Before MURNAGHAN,* NIEMEYER, and MICHAEL,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Charles Y. Sipe, GOODMAN, WEST & FILETTI, P.L.L.C., Char-
lottesville, Virginia, for Appellant. Robert P. Crouch, Jr., United
States Attorney, Ray B. Fitzgerald, Jr., Assistant United States Attor-
_________________________________________________________________
*Judge Murnaghan was assigned to the panel in this case but died prior
to the time the decision was filed. The decision is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).
ney, Darcy Goodard, Third Year Practice Student, Charlottesville,
Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Latasha Marie Smith appeals her convictions and sentence for one
count of conspiracy to distribute cocaine base, 21 U.S.C. § 846
(1994), and one count of knowingly and intentionally possessing with
intent to distributing cocaine base, 21 U.S.C. § 841(a)(1) (1994).
Finding no reversible error, we affirm.

Smith challenges the sufficiency of the evidence as to both of her
convictions. In reviewing a sufficiency of the evidence claim on
appeal, we must sustain the verdict if the record contains "substantial
evidence, taking the view most favorable to the Government, to sup-
port it." Glasser v. United States, 315 U.S. 60, 80 (1942). In applying
this standard, we give due regard to the fact finder's prerogative to
resolve questions of credibility. See United States v. Burgos, 94 F.3d
849, 862-63 (4th Cir. 1996). We find that evidence clearly established
that Smith was involved in the narcotics conspiracy and that she con-
structively possessed cocaine in March 1997 at the Charlottesville,
Virginia, bus station.

We also find that the district court did not abuse its discretion in
admitting evidence that a co-defendant murdered a person who alleg-
edly stole drugs and money from a member of the conspiracy. See
United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (evidenti-
ary decisions are reviewed for abuse of discretion). The evidence was
admissible against the co-defendant. See United States v. Miller, 116
F.3d 641, 682 (2d Cir. 1997); United States v. Chin, 83 F.3d 83, 87-
88 (4th Cir. 1996). The probative value of the evidence was not sub-

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stantially outweighed by the danger of unfair prejudice. See Fed. R.
Evid. 403. Because the evidence pertained to only one defendant and
the district court gave a limiting instruction, we conclude that Smith
was not prejudiced by the evidence.

Because the evidence of the co-defendant's participation in a mur-
der was admissible and Smith was not prejudiced by such evidence,
the denial of Smith's motion to sever was not an abuse of discretion.
See United States v. Haney, 914 F.2d 602, 606 (4th Cir. 1990).

We also find that the district court did not clearly err in attributing
542 grams of crack cocaine to Smith for sentencing purposes. See 18
U.S.C. § 3742(e) (1994); United States v. Fletcher, 74 F.3d 49, 55
(4th Cir. 1996); United States v. Uwaeme, 975 F.2d 1016, 1018 (4th
Cir. 1992). The preponderance of the evidence supported the district
court's findings. See United States v. Goff, 907 F.2d 1441, 1444 (4th
Cir. 1990).

Nor did the district court clearly err in adding two points to Smith's
criminal history point total based on the fact that she was a member
of the conspiracy while she was serving a good behavior sentence for
a misdemeanor offense. See United States v. McManus, 23 F.3d 878,
882 (4th Cir. 1994) (district court's conclusion regarding criminal his-
tory category is reviewed for clear error). It is presumed that Smith
continued to be involved in the conspiracy because she did not make
an affirmative act withdrawing from the conspiracy. See United States
v. Walker, 796 F.2d 43, 49 (4th Cir. 1986).

We find that the district court did not abuse its discretion in deny-
ing Smith's motion to reconsider the denial of a mental evaluation
under 18 U.S.C. § 4244 (1994). Finally, because the district court
knew that it had the discretion to depart from the sentencing guide-
lines due to diminished capacity, the district court's decision declin-
ing to depart is not reviewable by this court. See United States v.
Jones, 18 F.3d 1145, 1148 (4th Cir. 1994); United States v. Bayerle,
898 F.2d 28, 30-31 (4th Cir. 1990).

Accordingly, we affirm the convictions and sentence. We dispense
with oral argument because the facts and legal contentions are ade-

                   3
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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