UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 99-4629

MATTHEW JOHNSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Robert G. Doumar, Senior District Judge.
(CR-98-76)

Submitted: January 27, 2000

Decided: February 11, 2000

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed in part and dismissed in part by unpublished per curiam
opinion.

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COUNSEL

James S. Ellenson, Newport News, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Robert E. Bradenham, II, Assistant
United States Attorney, Billy B. Ruhling, II, Third Year Law Student,
Norfolk, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:

Matthew Johnson was convicted of distribution of cocaine base in
violation of 21 U.S.C. § 841(a)(1) (1994) and subsequently sentenced
to 168 months imprisonment. On appeal, he maintains that the district
court erred by: (1) allowing the testimony of a confidential informant
pertaining to prior drug transactions between himself and Johnson; (2)
applying a two-point enhancement for presence of a dangerous
weapon under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1)
(1998); and (3) refusing to grant a downward departure at sentencing
on the ground that Johnson's criminal history was overrepresented.

We find that the district court did not abuse its discretion in allow-
ing the testimony of the confidential informant concerning his prior
drug transactions with Johnson under Fed. R. Evid. 404(b), see United
States v. Mark, 943 F.2d 444, 447 (4th Cir. 1991), and that any error
was harmless in light of the overwhelming evidence of guilt, see
United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997). Addition-
ally, we find that the district court's two-point enhancement in John-
son's sentence for possession of a dangerous weapon was appropriate
under the circumstances of this case. See USSG § 2D1.1, comment.
(n.3). Last, the district court's decision not to depart from the guide-
lines is not subject to review when, as here, the district court's refusal
is not based on the mistaken belief that the court lacked the authority
to depart. See United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.
1990).

Accordingly, we affirm Johnson's conviction and sentence and dis-
miss that portion of the appeal that challenges the district court's deci-
sion not to depart from the guidelines. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court, and oral argument would not
aid the decisional process.

AFFIRMED IN PART; DISMISSED IN PART

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