UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5589

MICHAEL ANDREW MASON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 95-5608

MICHAEL ANDREW MASON,

Defendant-Appellee.

Appeals from the United States District Court

for the Western District of Virginia, at Charlottesville.

Glen M. Williams, Senior District Judge.

(CR-94-61)

Argued: December 6, 1996

Decided: February 12, 1997

Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge, and

DAVIS, United States District Judge for the District of Maryland,

sitting by designation.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Christopher Campbell Booberg, MORCHOWER, LUXTON & WHALEY, Richmond, Virginia, for Appellant. Donald Ray

Wolthuis, Assistant United States Attorney, Roanoke, Virginia, for

Appellee. ON BRIEF: Michael Morchower, MORCHOWER, LUXTON & WHALEY, Richmond, Virginia, for Appellant. Robert P.

Crouch, Jr., United States Attorney, Carolyn Furrow, Third Year Law

Student, Roanoke, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Michael Andrew Mason was charged with one count of

conspiracy to possess with intent to distribute cocaine base in violation of 21 U.S.C. § 846 and nine counts of possession with intent to

distribute cocaine base or distribution of cocaine base in violation of

21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, based on Mason's participation in a conspiracy to import cocaine and cocaine base from Washington, D.C. and parts of Virginia for distribution in the Harrisonburg

and Staunton, Virginia, areas. The government alleged that Mason

was a mid-level drug dealer in the conspiracy who distributed smaller

quantities of crack cocaine to lower level dealers and, on occasion,

negotiated and brokered distributions.

On September 29, 1994, Mason was granted pretrial supervision,

with conditions that included that he have no contact with his codefendants. At a continuation of bond hearing on January 3, 1995,

Deputy Jo Ellen Emsweiler of the Rockingham County Sheriff's

Department testified that she and Investigator Kurt Boshart of the

Harrisonburg Police Department saw Mason in an automobile with

co-defendant Justin Mason on November 8, 1994. However,

 2
Emsweiler testified that she did not see where Michael and Justin

Mason were going or where they were coming from, and because

Boshart had taken the notes of the incident, Emsweiler could not

recall the type of car or the license plate number. J.A. at 47-49. Furthermore, the surety for Michael Mason's bond testified that Michael

Mason was elsewhere at the time in question. Therefore, the court

found that there was insufficient evidence to find that Mason violated

the terms of his pretrial release. J.A. at 63-64.

During a jury trial, the government established that 86.39 grams of

cocaine base were discovered in Mason's car, and several of Mason's

co-defendants testified detailing Mason's role in the conspiracy. In

addition, Officer Boshart and Deputy Emsweiler testified that they

saw an illegal drug transaction between Michael and Justin Mason

and a government informant. However, Michael Mason testified that

he was not the person seen by the officers. When Mason's attorney

attempted to question Mason on redirect examination regarding the

bond revocation hearing, the district court sustained the government's

objection to that line of questioning. Mason was found guilty of one

count of conspiracy and one count of possession with intent to distribute or aid and abet possession with intent to distribute, but was acquitted on all other counts.

The Presentence Report stated that Mason had an offense level of

34 and a criminal history category of I and determined that under the

Sentencing Guidelines the sentencing range was 151 months to 188

months. However, the district court departed downward from the

guidelines and sentenced Mason to 120 months.

Mason appeals, arguing that his Sixth Amendment right to confrontation was violated by the district court's exclusion of testimony

regarding the bond revocation hearing. The United States crossappeals, arguing that the district court erred in granting a downward

departure from the sentencing guidelines range.

I.

During redirect examination, Mason's counsel attempted to question Mason regarding the bond revocation hearing. According to

Mason's counsel, the failure of the district court to find Mason in vio-

 3
lation of the terms of his parole demonstrated that Emsweiler and

Boshart had "misidentified" Mason in the past. However, the district

court sustained the government's objection, calling the bond revocation hearing a "peripheral matter" and concluding that defense counsel

had not laid a foundation for a misidentification argument during

cross-examination of Emsweiler and Boshart. J.A. at 226-28.

The district court did not violate Mason's right to confront witnesses brought against him. The government's mere failure to carry

its burden of proving a bond violation does not, in and of itself, establish a "misidentification" of Mason, and Mason failed to develop on

cross-examination of Emsweiler and Boshart any foundation for an

argument that these officers had previously misidentified him. As the

district court correctly concluded that the bond revocation hearing

was merely a "peripheral matter."

II.

Under 18 U.S.C. § 3553(b), the district court must impose a sentence within the range provided by the sentencing guidelines "unless

the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines

that should result in a sentence different from that described." No

such circumstance exists in this case.

The district court stated clearly that the probation officer correctly

determined the amount of the drugs to be attributed to Mason. J.A. at

287. In so doing, the district court noted that, under the Sentencing

Guidelines, a preponderance of the evidence test applies to attribution

of drug quantities to the defendant. Therefore, the drug quantities

attributed to Mason were greater than the quantities seized in the two

transactions for which Mason was convicted. As a result, Mason's

sentencing range was the same as it would have been had he been

convicted on all of the charges against him. The court then departed

downward from the guidelines range, stating:

If the defendant had been convicted on every one of these

counts, we would be in the exact same posture . . . .

 4
 Now the jury, of course, didn't know this. An ordinary

citizen wouldn't understand it. This is the way the sentencing guideline works . . . . And that bothers me about it. But

I have to find in all conscience that the probation officer has

correctly computed in a reasonable manner the amount of

the drugs to which he should be attributed.

J.A. at 287-88. The court continued:

There is nothing mentioned in [the Presentencing Report]

about downward or upward departure. Nothing is argued on

either side. Based on that -- however, I am going to depart

downward and I don't know whether this will stand up or

not. But I want to give my reasons.

 It's been speculated here by the attorneys on both sides

as to what the jury was thinking in this case and I happen

to by accident be walking out with the jury after this case

and I overheard some remarks. It was the feeling of this jury

. . . [that] they didn't want this young man to be serving that

much sentence and they found him not guilty on certain

counts giving him the benefit of the doubt thinking they

were giving him a less harsh sentence. . . .

 I don't know of any law, frankly, permitting a downward

departure. But the comments that were made by the jury was

they hoped that this young man wasn't going to be receiving

the amount of time up in the range that they had heard discussed in this case. One of them even asked me -- had identified me as he happened to be walking out. What kind of

sentence will this young man get? And I told him, you

know, I couldn't even speculate on it. I said, you know, it's

based on guidelines.

J.A. at 287-90.

As the district court itself recognized, its downward departure was

not based upon any legally cognizable mitigating factor not taken into

account by the sentencing guidelines, and, accordingly, was unautho-

 5
rized. As the parties suggest, only two mitigating factors can reasonably be discerned from the district court's explanation -- that the

court departed downward because the guideline range did not reflect

the fact that Mason was acquitted on some of the counts, or that the

court departed downward because of Mason's age. Neither of these

reasons provides a legally cognizable basis for downward departure.

As the district court candidly acknowledged, the amount of the

drugs was correctly computed. The fact that Mason would have

received no greater sentence had he been convicted on additional

counts does not provide a basis for departing from the proper guideline range for those counts on which Mason was convicted, because

we have held that the Sentencing Guidelines provide for consideration

of relevant conduct even when the defendant was not charged with,

or has been acquitted of, that conduct. United States v. Mullins, 971

F.2d 1138, 1143-44 (4th Cir. 1992); United States v. Isom, 886 F.2d

736, 739 (4th Cir. 1989).

Nor could Mason's age provide a basis for downward departure

because we have held that the age of the offender has been adequately

taken into account by the guidelines and therefore is not a permissible

grounds for departure. United States v. Summers, 893 F.2d 63, 69 (4th

Cir. 1990); see U.S.S.G. § 5H1.1 ("Age (including youth) is not ordinarily relevant in determining whether a sentence should be outside

the applicable guideline range. Age may be a reason to impose a sentence below the applicable guideline range when the defendant is

elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration."). In fact, in Summers we vacated the district court's downward

departure because the district court "clearly erred" in basing its departure on the fact that the defendant was twenty-three years old, the

same age as Mason was when the presentence report was filed.

Summers, 893 F.2d at 69; J.A. at 300-01.

CONCLUSION

For the reasons stated herein, we affirm the appellant's conviction,

but we vacate the sentence and remand to the district court for sentencing consistent with this opinion.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED 

 6