UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 00-4108

EDWARD LEE BURNETTE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-99-219)

Submitted: August 24, 2000

Decided: August 31, 2000

Before MICHAEL and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Beverly M. Murray, Petersburg, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Nicholas S. Altimari, Assistant United
States Attorney, J. Robert Bryden, II, Third-Year Law Student, Rich-
mond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Edward Lee Burnette of bank robbery and the dis-
trict court sentenced him to 72 months' imprisonment. Burnette
appeals his conviction and sentence alleging insufficient evidence to
sustain his conviction and error at sentencing. We affirm.

Burnette asserts insufficient evidence was presented at trial to iden-
tify him as the bank robber. When assessing the sufficiency of the
evidence of a criminal conviction on direct review,"[t]he verdict of
a jury must be sustained if there is substantial evidence, taking the
view most favorable to the Government, to support it." Glasser v.
United States, 315 U.S. 60, 80 (1942). Further, it is well established
that a jury's determination regarding witness credibility is not review-
able on appeal. See United States v. Saunders , 886 F.2d 56, 60 (4th
Cir. 1989).

After hearing testimony from the victim bank teller who identified
Burnette both in court and from a photographic line-up, Burnette's
sister and girlfriend (who both identified him as the man pictured in
the bank's surveillance camera photographs taken during the rob-
bery), and a former employer (who also identifed Burnette as the man
pictured in the photograph taken during the robbery), the jury clearly
resolved any identification issue against Burnette. Accordingly, view-
ing the evidence in the light most favorable to the Government, we
conclude there was sufficient evidence supporting the jury verdict.

Burnette also asserts the court erred in denying him a downward
departure under the Sentencing Guidelines on the ground that his
criminal history category was exaggerated by minor offenses. A sen-
tencing court's denial of a request for a downward departure is
reviewable only when the sentencing court based its decision on "the
mistaken view that it lacked the authority to depart." United States v.

                    2
Bayerle, 898 F.2d 28, 31 (4th Cir. 1990). Burnette does not argue that
the court mistakenly believed it lacked the authority to depart, and the
record indicates the court was aware of its authority to depart but sim-
ply declined to do so. Accordingly, this claim is not reviewable.

We therefore affirm Burnette'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

                    3
