                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 04-4053
JAMES HOLMAN BROWNING, JR.,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
                William L. Osteen, District Judge.
                            (CR-03-36)

                      Submitted: August 25, 2004

                      Decided: September 16, 2004

        Before SHEDD and DUNCAN, Circuit Judges, and
                HAMILTON, Senior Circuit Judge.



Affirmed by unpublished per curiam opinion.


                              COUNSEL

Robert L. McClellan, IVEY, MCCLELLAN, GATTON & TAL-
COTT, L.L.P., Greensboro, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Lisa B. Boggs, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
2                     UNITED STATES v. BROWNING
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   James Holman Browning, Jr., appeals his conviction and manda-
tory life sentence for conspiracy to distribute cocaine base, in viola-
tion of 21 U.S.C. §§ 841(b)(1)(A), 846 (2000), and two counts of
distribution of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B) (2000).

   Browning first contends that the district court erred by denying his
pre-trial motion for a court-appointed investigator. We review for an
abuse of discretion a district court’s decision that certain resources are
or are not "necessary." See United States v. Morrison, 946 F.2d 484,
490 (7th Cir. 1991); Williams v. Martin, 618 F.2d 1021, 1026 (4th
Cir. 1980). Indigent defendants are entitled by law to money for
investigative and expert services that are "necessary for adequate rep-
resentation." 18 U.S.C. § 3006A(e)(1) (2000). After careful consider-
ation of the record, we conclude that the district court’s denial of
Browning’s motion for lateness and insufficient reason was not an
abuse of discretion. Williams, 618 F.2d at 1026.

   Second, Browning contends that the district court erred by denying
his repeated requests for a continuance and requiring him to proceed
to trial despite his lack of time to prepare his own defense. The denial
of a motion for a continuance is reviewed for an abuse of discretion.
Morris v. Slappy, 461 U.S. 1, 11-12 (1983). A trial court abuses its
discretion when it denies a continuance based upon an unreasonable
and arbitrary insistence on expeditiousness. Id. The district court
granted Browning’s three previous motions to relieve counsel, and
delayed the trial when each of the two replacement counsel was
appointed. In addition, when considering Browning’s final motion to
relieve counsel and to represent himself, the court repeatedly warned
Browning that should he elect to relieve his third attorney and pro-
ceed pro se, he would be required to be prepared for trial on the date
                      UNITED STATES v. BROWNING                        3
previously scheduled. On these facts, we conclude that the district
court’s ruling was not based upon an unreasonable and arbitrary insis-
tence on expeditiousness, and thus was not an abuse of discretion. Id.

   Third, Browning challenges the district court’s admission of expert
testimony regarding the chemical testing of suspected drug samples
as inadmissable hearsay lacking a proper foundation. This Court
reviews a district court’s ruling on the relevance and admissibility of
evidence for an abuse of discretion. See United States v. Brooks, 111
F.3d 365, 371 (4th Cir. 1997). Federal Rule of Evidence 703 pro-
vides:

    The facts or data in a particular case upon which an expert
    bases an opinion or inference may be those perceived or
    made known to the expert at or before the hearing. If of a
    type reasonably relied upon by experts in the particular field
    in forming opinions or inferences upon the subject, the facts
    or data need not be admissible in evidence.

Fed. R. Evid. 703. Here, expert testimony was offered by a supervis-
ing chemist, who did not personally perform the testing, but based her
conclusion on reports prepared by her subordinate. Even assuming
that the testimony was based upon hearsay, we conclude that it was
properly admitted under Fed. R. Evid. 703, as the facts underlying her
opinions were "of a type reasonably relied upon by experts in the par-
ticular field in forming opinions." Accordingly, we hold that the dis-
trict court did not abuse its discretion. Fed. R. Evid. 703; Brooks, 111
F.3d at 371.

   Next, Browning contends that in enacting 21 U.S.C. § 851(a)
(2000), Congress violated the constitutional principle of the Separa-
tion of Powers by allowing the prosecution to determine the range of
penalties under § 841. This Court reviews a determination as to con-
stitutionality of a statute de novo. United States v. Mento, 231 F.3d
912, 917 (4th Cir. 2000). A prosecutor may file an information identi-
fying a defendant’s prior convictions for purposes of seeking an
enhanced sentence under § 841(b)(1)(B). See 21 U.S.C. § 851(a)
(2000). Section 841 provides that "if any person commits a violation
of this subparagraph . . . after two or more prior convictions for a fel-
ony drug offense have become final, such person shall be sentenced
4                     UNITED STATES v. BROWNING
to a mandatory term of life imprisonment without release."
§ 841(b)(1)(A). Browning’s challenge to the constitutionality of § 851
is without merit. A prosecutor’s discretion to "determine whether a
defendant will be subject to the enhanced statutory maximum" is
"similar to the prosecutorial discretion a prosecutor exercises when he
decides what, if any, charges to bring against a criminal suspect."
United States v. LaBonte, 520 U.S. 751, 761-62 (1997).

   Finally, Browning’s related claim that the Government’s exercise
of discretion in filing a Section 851 information was improperly based
upon his refusal to accept a plea agreement and his decision to instead
assert his constitutional right to a trial is also meritless. There is no
evidence in the record to suggest that the Government acted with
improper motives. Consequently, we find that the Government’s
motion under § 851 was a proper exercise of discretion. LaBonte, 520
U.S. at 761-62.

  Accordingly, we affirm Browning’s conviction and sentence. We
deny Browning’s motion for 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
