                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4994



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


MARK ANTHONY BROCK,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (CR-04-10060)


Submitted:   June 21, 2006                 Decided:   July 17, 2006


Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joseph W. Rasnic, Jonesville, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Jennifer R. Bockhorst, Assistant
United States Attorney, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Mark Anthony Brock appeals his conviction and 240-month

sentence imposed for three counts of distribution of a schedule II

controlled substance to a person under twenty-one years of age, in

violation of 21 U.S.C. §§ 841(b)(1)(C), 859 (2000), and two counts

of     distribution     of        morphine,    in     violation        of   18   U.S.C.

§ 841(b)(1)(C) (2000).            On appeal, Brock argues that it was error

for the district court to deny his motion to sever counts five and

six,    relating   to       two    controlled        purchases    of    narcotics       by

government agents, from counts one through four, relating to the

distribution of narcotics to two friends.                   Brock also contends the

district court abused its discretion by imposing a substantial

upward departure.       Finding no error, we affirm.

            This court reviews the denial of a motion to sever for an

abuse of discretion.          United States v. Rhodes, 32 F.3d 867, 872

(4th Cir. 1994).       We have held that all counts charged in a single

indictment are generally tried together. United States v. Samuels,

970 F.2d 1312, 1315 (4th Cir. 1992).                 To obtain a severance under

Fed. R. Crim. P. 14, a defendant must show that the joinder “was so

manifestly prejudicial that it outweighed the dominate concern with

judicial economy and compelled exercise of the court’s discretion

to sever.”     United States v. Acker, 52 F.3d 509, 514 (4th Cir.

1995) (citing United States v. Armstrong, 621 F.2d 951, 954 (9th

Cir.    1980)).       The    burden    is     upon    the    defendant      to   make   a


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particularized showing of prejudice from the denial of a severance

motion.   United States v. Clark, 928 F.2d 639, 645 (4th Cir. 1991).

           Where    evidence   of    the    crimes   “would   be    mutually

admissible for legitimate purposes in separate trial for each

offense,” the possibility of prejudice requiring severance is

“greatly diminished.”      United States v. Cole, 857 F.2d 971 (4th

Cir. 1988).    If much of the evidence could have been properly

introduced in separate trials under Fed. R. Evid. 404(b), then the

possibility   of   prejudice   is    greatly    mitigated.         Id.   The

possibility of prejudice is further reduced if an instruction is

given to the jury cautioning them to consider the evidence of each

crime separately.    Id.

           We find that the district court       properly denied Brock’s

motion to sever counts five and six.          Because the evidence would

have been admissible in separate trials for each group of charges,

the interests of judicial economy were furthered, and the court

gave a limiting instruction that guarded against the possibility of

prejudice, we find the district court did not abuse its discretion.

           Brock’s sentence of 240 months’ imprisonment was based on

an upward departure from the guidelines range of 110 to 137 months’

imprisonment pursuant to U.S. Sentencing Guidelines Manual § 5K2.0.

Although the district court’s ultimate decision to depart is

reviewed de novo, we review the factual findings underlying that

decision for clear error, and the extent of the departure for


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reasonableness.     United States v. Davis, 380 F.3d 183, 187-88 (4th

Cir. 2004). The district court must first determine the guidelines

range and, if a sentence within that range is not adequate to meet

the sentencing factors set forth pursuant to 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2005), the court may “look to whether a

departure is appropriate based on the Guidelines Manual or relevant

case law.”    United States v. Moreland, 437 F.3d 424, 432 (4th Cir.)

(explaining procedure to be followed when guidelines range is

inadequate, and discussing difference between departures under the

guidelines and variance sentences), cert. denied, 126 S. Ct. 2054

(2006).

             Brock does not challenge the district court’s calculation

of the guidelines range.         Moreover, the court provided cogent

reasons for departing from that range, including Brock’s providing

illicit drugs to a minor who did not want the drugs, failing to

seek   assistance   for   a   person   who   overdosed   on   drugs   in   his

presence, and hiding the overdose victim’s body in the woods so

Brock’s involvement in the victim’s death would not be discovered.

On this record, we cannot say that the district court erred in

applying an upward departure.          See Moreland, 437 F.3d at 432-33;

see generally United States v. Green, 436 F.3d 449, 455-56 (4th

Cir. 2006), cert. denied, __ U.S. __, 2006 WL 1057741 (U.S. May 22,

2006) (No. 05-10474). Moreover, we conclude that the extent of the

departure was reasonable.


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          Accordingly, we affirm the conviction and sentence.   We

dispense 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




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