UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 00-4218

DAVID IVORY AUSTIN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Margaret B. Seymour, District Judge.
(CR-98-469)

Submitted: September 29, 2000

Decided: October 17, 2000

Before LUTTIG, MICHAEL, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Arthur Bradley Parham, OFFICE OF
THE UNITED STATES ATTORNEY, Florence, South Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

A jury convicted David Ivory Austin of two counts of possession
with intent to distribute and distribution of crack cocaine.1 He was
sentenced to 210 months on each count, to run concurrently, followed
by three years of supervised release. Austin's attorney has filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967), alleg-
ing that: (1) the district court erred by allowing Austin to release
court-appointed counsel and represent himself; (2) the district court
should have allowed counsel to cross-examine a Government witness
after Austin ceased self-representation; (3) he was entitled to a judg-
ment of acquittal pursuant to Fed. R. Crim. P. 29; (4) the court erred
by not allowing Austin to testify in surrebuttal; (5) the court erred by
classifying Austin as a career offender; and (6) Austin was entitled to
a downward departure based on overstatement of his criminal history
and diminished capacity. Austin filed a pro se supplemental brief
alleging that his sentence is illegal in light of the Supreme Court's
decision in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000); that he
was the victim of prosecutorial misconduct; and that 21 U.S.C.A.
§ 841(a)(1) (West 1999) is unconstitutional in light of Apprendi.
Finding no reversible error, we affirm.

The basic facts of this case are relatively straightforward. Austin
was arrested after he sold crack cocaine to a confidential informant
on two occasions.2 Police observed the transactions and recorded
them via a body wire concealed on the informant. Austin's defense
at trial was based on his testimony that the informant sold the drugs
to him, instead of the other way around.

On the day of trial, the district court ruled on Austin's motion to
relieve court-appointed counsel. The court initially denied the motion,
but then reconsidered its decision and, after lengthy discussions with
Austin and counsel, granted the motion. The court granted Austin's
_________________________________________________________________
1 See 21 U.S.C.A. § 841(a)(1) (West 1999).
2 A total of approximately 2.5 grams of crack cocaine was attributed to
Austin as a result of these transactions.

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request for counsel to remain in a standby position. After cross-
examining the Government's first witness, Austin changed his mind
and asked the court to allow counsel to take over the case. The court
granted Austin's request, and counsel represented him for the remain-
der of the trial.

We review the district court's decision to allow Austin to waive
attorney representation de novo and find no error. See United States
v. Singleton, 107 F.3d 1091, 1097 (4th Cir. 1997). The record shows
that Austin insisted on representing himself, despite the court advising
him in great depth on the advantages of having counsel. In addition,
the district court's extensive discussion with Austin established that
his waiver was knowing, voluntary, and intelligent.

We review the district court's decision to limit cross-examination
for an abuse of discretion and find none. See United States v. McMil-
lon, 14 F.3d 948, 955-56 (4th Cir. 1994). After Austin ceased his self-
representation, counsel asked to resume cross-examination of the
Government's witness, but the court denied the request. The court
properly found that this type of hybrid representation is generally dis-
favored. Moreover, Austin has failed to show any prejudice from the
court's decision because he could have presented any additional evi-
dence during his own testimony or by re-calling the witness during
the defense case-in-chief.

The standard of review for deciding a Rule 29 motion is "whether
there is substantial evidence (direct or circumstantial) which, taken in
the light most favorable to the prosecution, would warrant a jury find-
ing that the defendant was guilty beyond a reasonable doubt." United
States v. MacCloskey, 682 F.2d 468, 473 (4th Cir. 1982). In determin-
ing the issue of substantial evidence, we neither weigh the evidence
nor consider the credibility of witnesses. See United States v. Arring-
ton, 719 F.2d 701, 704 (4th Cir. 1983).

In the present case, both the investigating officer and the informant
testified that Austin sold crack cocaine to the informant. There was
also a tape recording of the transactions which was played for the
jury. Although Austin testified that it was the informant who sold the
drugs to him, the jury resolved this credibility issue in the Govern-
ment's favor. As a result, we find that there was substantial evidence

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to support the jury's verdict, and the district court properly denied
Austin's Rule 29 motion.

We review the district court's denial of Austin's request to offer
surrebuttal evidence for an abuse of discretion and find none. See
United States v. King, 879 F.2d 137, 138 (4th Cir. 1989). It is well-
settled that surrebuttal evidence is admissible if it is in response to
any new matter brought up during rebuttal. See id. In the present case,
the rebuttal testimony was offered in response to Austin's testimony
concerning certain interviews with officers. No new matters were
raised. In addition, it appears from the record that the proposed surre-
buttal testimony was simply a repeat of Austin's original testimony.

We reject Austin's challenges to his sentence. Austin was sen-
tenced as a career offender pursuant to USSG § 4B1.1.3 Contrary to
Austin's allegations, the district court properly found that his prior
convictions occurred on separate dates, in different jurisdictions, and
were separated by an intervening arrest. See USSG § 4A1.2, com-
ment. (n.3). Therefore, the district court did not clearly err by finding
them unrelated. See United States v. Huggins, 191 F.3d 532, 539 (4th
Cir. 1999), cert. denied, 120 S. Ct. 1968 (2000). Our review of the
record shows that the district court recognized its authority to grant
Austin's motion for a downward departure, but declined to do so. As
a result, its decision is not reviewable on appeal. See United States v.
Bayerle, 898 F.2d 28, 30 (4th Cir. 1990).

We have considered the effect of Apprendi and find that, because
Austin received a sentence of imprisonment and term of supervised
release that did not exceed the statutory maximums set out in 21
U.S.C.A. § 841(b)(1)(C) (West 1999), no plain error occurred. See
United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.
2000). Likewise, we find nothing in Apprendi that renders § 841
unconstitutional. Finally, we find no evidence in the record to support
Austin's speculative claims of prosecutorial misconduct.

We have examined the entire record in this case in accordance with
the requirements of Anders, and find no meritorious issues for appeal.
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3 U.S. Sentencing Guidelines Manual (1998).

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The court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.

We therefore affirm Austin's convictions 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

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