UNPUBLISHED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Affirmed by unpublished per curiam opinion.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 & TALCOTT, 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.
Unpublished opinions are not binding precedent in this circuit.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 mandatory life sentence for conspiracy to distribute cocaine base, in violation 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 representation." 18 U.S.C. § 3006A(e)(1) (2000). After careful consideration 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 proceed pro se, he would be required to be prepared for trial on the date

2 UNITED STATES v. BROWNING
previously scheduled. On these facts, we conclude that the district

court’s ruling was not based upon an unreasonable and arbitrary insistence 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 provides:

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 supervising 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 particular field in forming opinions." Accordingly, we hold that the district 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 Separation of Powers by allowing the prosecution to determine the range of

penalties under § 841. This Court reviews a determination as to constitutionality of a statute de novo. United States v. Mento, 231 F.3d

912, 917 (4th Cir. 2000). A prosecutor may file an information identifying 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 felony drug offense have become final, such person shall be sentenced

UNITED STATES v. BROWNING 3
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

4 UNITED STATES v. BROWNING