UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 97-4114

FRANK EPHFROM BALLARD,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, District Judge.
(CR-96-19-BR)

Submitted: August 28, 1997

Decided: September 18, 1997

Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Janipher W. Robinson, ROBINSON & GREENE, Richmond, Vir-
ginia, for Appellant. Janice McKenzie Cole, United States Attorney,
Anne M. Hayes, Assistant United States Attorney, Christine Witcover
Dean, Assistant United States Attorney, Raleigh, North 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Unpublished opinions are not binding precedent in this circuit.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:

Frank Ephfrom Ballard pled guilty to conspiracy to manufacture
and possess crack cocaine with intent to distribute, 21 U.S.C. § 846
(1994). He appeals his sentence of 292 months imprisonment on the
grounds that the district court clearly erred in determining the amount
of crack for which he was responsible under USSG§ 2D1.1,1 and in
finding that he had not accepted responsibility for his criminal con-
duct. USSG § 3E1.1. We affirm.

The district court found that Ballard was subject to a base offense
level of 38, for which the threshold amount of crack is 1.5 kilograms.2
Ballard sold 67 grams of crack to a confidential informant in two con-
trolled purchases in November and December 1995. During the first
transaction, which was recorded, co-defendant Sherman Knox told the
informant that he had cooked a kilogram of cocaine into crack for
Ballard the night before, and on the same day Ballard told the infor-
mant that he only sold "rock." At the sentencing hearing, the federal
agent in charge of the investigation testified that Knox had cooperated
with authorities after his arrest and admitted cooking nine-ounce
(255-gram) quantities of cocaine into crack for Ballard on three ear-
lier occasions in 1995. Knox estimated that he had cooked at least
five kilograms of cocaine for Ballard in the two years he dealt with
him. In addition, the agent testified that another drug dealer, Hardy
Ballard, Jr., had admitted selling Ballard two kilograms of cocaine in
February 1996.
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1996).
2 The court adopted the probation officer's recommended finding that
Ballard was accountable for 5 kilograms of crack, but only the finding
of 1.5 kilograms is critical.

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While conceding that the government produced evidence of his
involvement with more than 1.5 kilograms of crack, 3 Ballard argues
that the government's hearsay evidence from co-defendant Knox
should not have been considered because it was unreliable. Generally,
hearsay evidence may be considered during sentencing if it is relevant
and reliable. See United States v. Jones, 31 F.3d 1304, 1316 (4th Cir.
1994). Ballard contends, incorrectly, that information supplied by a
co-defendant is acceptable only when the co-defendant testifies and
is cross-examined. However, the Confrontation Clause does not pre-
clude consideration of such information at a sentencing proceeding as
long as the defendant has the opportunity to rebut it. See United States
v. Helton, 975 F.2d 430, 434 (7th Cir. 1992). Ballard had that oppor-
tunity. Moreover, the information obtained from Knox during post-
arrest interviews was corroborated by Knox's recorded statement to
the informant and further supported by information from Hardy Bal-
lard, Jr., about Ballard's subsequent drug dealing. Therefore, we find
that the hearsay evidence was properly considered and that the court's
determination of the offense level was not clearly erroneous.

Ballard denied any involvement with drugs apart from the two con-
trolled sales to the informant. A defendant who falsely denies relevant
conduct that the court determines to be true has not demonstrated
acceptance of responsibility. USSG § 3E1.1, comment. (n.1(a)). Con-
sequently, the district court did not clearly err in denying Ballard the
adjustment.

Accordingly, we affirm the sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED
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3 We have previously approved an estimated 88% yield of crack from
cocaine powder, as yields may vary. See United States v. Ricco, 52 F.3d
58, 63 (4th Cir.), cert. denied, ___ U.S. ___, 64 U.S.L.W. 3247 (U.S.
Oct. 2, 1995) (No. 95-5502).

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