UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-4245

ANTONIO MATTHEWS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-97-138)

Submitted: September 29, 1998

Decided: October 23, 1998

Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Michael Morchower, MORCHOWER, LUXTON & WHALEY,
Richmond, Virginia, for Appellant. Helen F. Fahey, United States
Attorney, N. George Metcalf, Assistant United States Attorney, 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Unpublished opinions are not binding precedent in this circuit.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 Antonio Matthews of two counts of distribution
of cocaine base in violation of 21 U.S.C. § 841(a)(1) (1994), 18
U.S.C. § 2 (1994). He received concurrent sentences of 240 months
imprisonment on Count 1 and 292 months imprisonment on Count 2.
Matthews timely noted an appeal. Finding no error, we affirm the
conviction and sentence.

Matthews first claims that there was insufficient evidence to estab-
lish that he was the person who sold drugs to Drug Enforcement
Administration Special Agent Mark Ross and his confidential infor-
mant, Rodney Braxton. He contends that Agent Ross mistakenly testi-
fied that Matthews had a "corn row" haircut rather than a shaved
head, and that neither Braxton nor Agent Ross testified that Matthews
had a tattoo on his scalp and a gold tooth.

When addressing an insufficiency of the evidence claim, this court
will affirm a criminal conviction if, in light of the totality of the evi-
dence presented at trial, a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v.
Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996) (in banc), cert. denied,
___ U.S. ___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No. 96-6868).
The jury, not the reviewing court, is responsible for resolving any
conflicts and weighing the credibility of the evidence. See United
States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994).

Although neither witness testified regarding Matthews' tattoo or
gold tooth, Agent Ross identified Matthews in court as the person
who sold drugs to him on September 22, 1995, and October 6, 1995.
He stated that on both occasions he saw Matthews clearly and that he
engaged in conversations with him that lasted several minutes.1 To
consummate the drug deals on September 22, Agent Ross met with
_________________________________________________________________
1 Although Agent Ross originally testified that Matthews had a "corn
row" haircut on the dates of the drug transactions, he later corrected him-
self and testified that Matthews had a "close-cut shaven" haircut.

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Matthews twice, and on October 6, Agent Ross met with Matthews
three times. In addition, Braxton, the confidential informant who
accompanied Agent Ross during both purchases, testified that he had
known Matthews prior to the transactions. He also stated that Mat-
thews was the person who sold the drugs to them. In light of this evi-
dence, the jury could have found beyond a reasonable doubt that
Matthews was the person who sold narcotics to Agent Ross. See
Burgos, 94 F.3d at 862-63.

Matthews next claims that the district court erroneously permitted
the Government's cross-examination of him to go beyond the scope
of the direct examination.2 Under Fed. R. Evid. 611(b), "[c]ross-
examination should be limited to the subject matter of the direct
examination and matters affecting the credibility of the witness." Fur-
ther, the Government may inquire into specific instances of the wit-
ness's conduct on cross-examination when credibility is an issue and
when doing so would be probative of the witness's character for truth-
fulness. See Fed. R. Evid. 608(b). The extent and scope of cross-
examination are within the sound discretion of the trial judge. See
United States v. McMillon, 14 F.3d 948, 956 (4th Cir. 1994).

On direct examination, Matthews denied selling drugs to Agent
Ross and Braxton. On cross-examination, the prosecutor asked
whether Matthews was in Fredericksburg, the city where the transac-
tions occurred, during September and October of 1995, and Matthews
denied being there. Further, when asked whether he had ever sold
drugs, Matthews said he had not. By denying on direct examination
that he sold drugs on the occasions in question, Matthew placed his
credibility and truthfulness into the arena for challenge by the prose-
cution. See Fed. R. Evid. 608(b), 611(b). Thus, the district court did
not abuse its discretion by permitting the prosecution to challenge his
credibility and truthfulness on cross-examination by asking whether
he was in the city where the sales occurred, or whether he had ever
sold drugs.
_________________________________________________________________
2 Matthews contends that as a result of the testimony elicited during the
Government's cross-examination, the Government was able to call two
rebuttal witnesses. However, he does not challenge the admission of the
rebuttal testimony, nor did he object to that testimony at trial.

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Next, Matthews contends that he should not have been held
accountable at sentencing for more than 1.5 kilograms of cocaine base
because there was insufficient evidence to establish that he distributed
that amount. The Government bears the burden of proving the quan-
tity of drugs for which a defendant is to be held responsible at sen-
tencing by a preponderance of the evidence. See United States v.
Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993). The district court's fac-
tual determination concerning the amount of drugs attributable to an
appellant should be upheld absent clear error. See United States v.
Lamarr, 75 F.3d 964, 972 (4th Cir.), cert. denied, ___ U.S. ___, 65
U.S.L.W. 3309 (U.S. Oct. 21, 1996) (No. 95-9398); United States v.
D'Anjou, 16 F.3d 604, 614 (4th Cir. 1994). In addition, the district
court is afforded broad discretion as to what information to credit in
making its calculations. See United States v. Falesbork, 5 F.3d 715,
722 (4th Cir. 1993).

The district court's determination that Matthews was responsible
for more than 1.5 kilograms of cocaine base was based on trial testi-
mony and the presentence report. Ricardo Morton testified that during
September and October of 1995, Matthews supplied four and a half
to nine ounces of crack cocaine to him five to six times per week.
Marvin Morton testified that he purchased two and a quarter ounce
quantities of crack cocaine four or five times per week from Mat-
thews during September and October. In addition, Agent Ross testi-
fied that he purchased approximately thirty-five grams of crack from
Matthews, and the presentence report indicates that during the Sum-
mer and Fall of 1995, Matthews sold a total of about 3395 grams of
crack. Finally, Matthews' counsel admitted at sentencing that he had
no credible evidence to dispute the Government's evidence establish-
ing that Matthews distributed more than 1.5 kilograms. Thus, we find
that the district court did not clearly err when it determined that the
Government had proven by a preponderance of the evidence that Mat-
thews distributed more than 1.5 kilograms of cocaine base. See
Lamarr, 75 F.3d at 972.

Finally, Matthews asserts that the district court abused its discre-
tion when it refused to grant a downward departure in his sentencing
range. He contends that he faces harsher consequences than antici-
pated by the Sentencing Guidelines as a result of his status as a
deportable alien. A district court's decision not to depart from the sen-

                     4
tencing guidelines is not subject to appellate review unless the refusal
to depart is based on the mistaken belief that the court lacked the
authority to depart. See United States v. Bayerle, 898 F.2d 28, 30-31
(4th Cir. 1990). There is no evidence in this case that the court was
mistaken as to its authority to depart from Matthews' guideline range;
rather, the sentencing judge determined that Matthews' status as a
deportable alien did not warrant a downward departure. Thus, we will
not review the court's decision not to depart downward.

We affirm Matthews' 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 in the decisional process.

AFFIRMED

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