UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 96-4311

ANTHONY ALEXANDER WHETSTONE,

a/k/a Toot,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Orangeburg.

Charles E. Simons, Jr., Senior District Judge.

(CR-95-320)

Submitted: December 19, 1996

Decided: January 6, 1997

Before ERVIN and MOTZ, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert W. Mills, Columbia, South Carolina, for Appellant. J. Rene

Josey, United States Attorney, Cameron Glenn Chandler, Assistant

United States Attorney, Columbia, South Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

Anthony Alexander Whetstone was convicted by a jury of conspiracy to possess cocaine and crack cocaine with intent to distribute, 21

U.S.C. § 846 (1994), and use of a telephone to facilitate a drug

offense, 21 U.S.C. § 843(b) (1994). He appeals his 121-month sentence on the grounds that the district court clearly erred in determining that the amount of crack attributable to him was more than 50

grams and abused its discretion by declining to continue the sentencing hearing. We affirm.

At Whetstone's trial, co-defendants Pamela Rogers and Jim McLeod testified that they sold crack to him. McLeod testified that he

gave Whetstone an ounce of crack (28.35 grams) in the fall of 1994,

for which he was not fully paid.* Rogers testified that she sold crack

to Whetstone from the summer of 1993 until her arrest in February

1995. She said she initially sold him three grams and then fronted him

another three grams for which she was never paid. Thereafter, he

bought crack from her for cash on a weekly basis in amounts ranging

from half a gram to three grams. The probation officer calculated that,

at a minimum, Whetstone bought 23 grams of crack from Rogers. The

minimum amount of crack attributed to Whetstone was 51 grams.

Whetstone disputed the crack amount and requested a continuance

of sentencing so that Rogers, who was out of state, could testify, arguing that her trial testimony was too vague to establish the 23 grams.

Instead, the district court reviewed the transcript of Rogers' trial testimony, found that the evidence established Whetstone's involvement

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*McLeod also testified that he later fronted Whetstone another ounce

of crack for which he was never paid; however, the probation officer did

not include this amount in the offense level calculation and the district

court did not consider it.

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with over 50 grams of crack, and decided against continuing the sentencing.

We find no merit in Whetstone's contention that Rogers was not

a credible witness because she admitted regularly smoking marijuana

and had entered into a plea agreement. The judge who sentenced

Whetstone had also presided over the trial and was able to judge Rogers' credibility. We do not second-guess that decision. United States

v. Saunders, 886 F.2d 56, 60 (4th Cir. 1988). To the extent that Rogers was uncertain of the total amount she sold to Whetstone, he was

given the benefit of every doubt. The district court did not clearly err

in finding that the government had proved by a preponderance of the

evidence that Whetstone was responsible for at least 50 grams of

crack. Because the transcript of Rogers' testimony was adequate to

resolve the issue, the district court did not abuse its discretion in

denying a continuance.

The sentence is therefore affirmed. 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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