UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4443
HOWARD DAVIS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Anderson.
Henry M. Herlong, Jr., District Judge.
(CR-92-524)
Submitted: January 20, 1998
Decided: February 11, 1998
Before WILKINS and HAMILTON, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
William H. Ehlies, P.A., Greenville, South Carolina, for Appellant.
J. Rene Josey, United States Attorney, David C. Stephens, Assistant
United States Attorney, Greenville, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Howard Davis pled guilty in 1993 to conspiring to distribute and
to possess with intent to distribute crack cocaine in violation of 21
U.S.C. § 846 (1994), and to using and carrying a firearm during a
drug trafficking offense in violation of 18 U.S.C.A.§ 924(c) (West
Supp. 1994). On appeal,* Davis contended, among other things, that
in light of Bailey v. United States, #6D 6D6D# U.S. ___, 64 U.S.L.W. 4039
(U.S. Dec. 6, 1995) (Nos. 94-7448, 94-7492), there was not a suffi-
cient factual basis to support his guilty plea on the § 924(c) count. We
affirmed Davis' conspiracy conviction and sentence but remanded the
§ 924(c) conviction and sentence to the district court for a determina-
tion of whether the conviction should stand in light of Bailey and for
further proceedings as appropriate. See United States v. Davis, No.
95-5525 (4th Cir. Oct. 25, 1996) (unpublished). The district court
vacated the § 924(c) conviction and resentenced Davis, enhancing his
sentence for the drug conviction under U.S. SENTENCING GUIDELINES
MANUAL § 2D1.1(b)(1) (1995).
Davis appeals his 235-month prison sentence, claiming that the dis-
trict court exceeded the scope of our remand and therefore did not
have jurisdiction to resentence him on the related conspiracy convic-
tion following his successful attack on direct appeal of his § 924(c)
conviction under Bailey. We have decided this issue to the contrary.
See United States v. Hawthorne, 94 F.3d 118, 122 (4th Cir. 1996).
Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the mate-
rial before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
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*We dismissed Davis' first appeal for lack of jurisdiction because the
notice of appeal was not timely filed. Davis then filed a motion under 28
U.S.C. § 2255 (1994), claiming that his counsel failed to timely file the
notice of appeal after being asked to do so. The district court granted
Davis' motion, vacated the judgment of conviction, and reinstated it to
afford Davis an opportunity to appeal.
2