UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 96-4689

RAY ALLEN SPARKS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Statesville.
Richard L. Voorhees, Chief District Judge.
(CR-95-26-V)

Submitted: September 23, 1997

Decided: November 10, 1997

Before WILLIAMS and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

John E. Hall, Bradley J. Cameron, Wilkesboro, North Carolina, for
Appellant. Mark T. Calloway, United States Attorney, Kenneth D.
Bell, First Assistant United States Attorney, Charlotte, North Caro-
lina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Ray Allen Sparks appeals the 135-month sentence he received after
he pled guilty to conspiring with Rex Love and Charlie Moore to pos-
sess with intent to distribute and distribute marijuana from 1991 until
all three were arrested in January 1995. See 21 U.S.C.A. § 846 (West
Supp. 1997). Sparks contends that the district court clearly erred in
finding that he was Moore's manager or supervisor on the basis of
hearsay information in the presentence report. See U.S. Sentencing
Guidelines Manual § 3B1.1(c) (1995). He further argues that the court
erred in determining his criminal history category. We affirm in part,
vacate in part, and remand for further proceedings.

Sparks, Love, and Moore were part of a larger conspiracy which
purchased large amounts of marijuana from Mexican suppliers in
Texas and Arizona and transported it to North Carolina. Love was
head of the Wilkes County organization. Sparks assisted Love. He
recruited Moore to unload marijuana and paid him for his help with
four loads during 1991 and 1992. Sparks also kept records of distribu-
tors in Wilkes County and the amounts of marijuana they received.
After hearing testimony concerning Sparks' role in the offense, the
district court found that he was a manager or supervisor. We cannot
find that the district court clearly erred in making this determination.

Sparks had three criminal history points, all resulting from a 1989
conviction for assault. He received one point for his sentence of five
years unsupervised probation and two points for committing the
instant offense while under a criminal justice sentence. See U.S.S.G.
§ 4A1.1(c)-(d). At the sentencing hearing, he requested a downward
departure on the ground that his criminal history overstated his past
criminal conduct, see U.S.S.G. § 4A1.3, p.s., but the district court
declined to depart. After he was sentenced, Sparks filed a Motion for
Appropriate Relief in the district court of Wilkes County, asking that

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his 1989 conviction and sentence for assault be vacated and that he
be granted a new trial on the ground that his guilty plea was involun-
tary. The motion was granted and a new trial was ordered. On appeal,
Sparks asserts that his criminal history was wrongly calculated in the
first place and requests a remand for further proceedings now that the
assault conviction has been vacated.

We find that the district court correctly calculated Sparks' criminal
history at the sentencing hearing. However, because the assault con-
viction has since been overturned, we remand to allow the district
court to reconsider his criminal history score. If the issue were not
resolved now, Sparks could raise it in a later motion under 28
U.S.C.A. § 2255 (West 1994 & Supp. 1997), see United States v.
Bacon, 94 F.3d 158, 161 n.3 (4th Cir. 1996), but we see no reason to
require Sparks to initiate a new proceeding.

We therefore affirm the district court's determination of Sparks'
role in the offense but vacate the sentence and remand for reconsider-
ation of his criminal history. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.

          AFFIRMED IN PART, VACATED,
          IN PART, AND REMANDED

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