               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 97-50585
                         Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

MARK ANTHONY EVANS, also known as Mark Evans,

                                         Defendant-Appellant.

                         - - - - - - - - - -
           Appeal from the United States District Court
                 for the Western District of Texas
                        USDC No. W-96-CR-2-1
                         - - - - - - - - - -
                            March 18, 1998
Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

     Mark Anthony Evans was convicted of conspiracy to possess

with the intent to distribute cocaine.   He challenges his

conviction and sentence on several grounds.

     Evans first argues that the district court erred in

increasing his offense level under U.S.S.G. § 3B1.1(a) for his

role in the offense.   We have reviewed the record and the briefs

on appeal and find that the district court did not clearly err in

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                           No. 97-50585
                                -2-

assessing a four-level increase in Evans’ offense level for his

leadership role.   See United States v. Puig-Infante, 19 F.3d 929,

944 (5th Cir. 1994).

     Evans argues next that the district court erred in

calculating his criminal history score.   The district court's

calculation of Evans’ criminal history score did not rise to the

level of plain error.   See United States v. Calverley, 37 F.3d

160, 162-64 (5th Cir. 1994)(en banc).

     Evans also avers that the district court erred in failing to

hold a formal evidentiary hearing regarding his claim made

pursuant to Batson v. Kentucky, 476 U.S. 79 (1986).   A review of

the record reveals that Evans was granted the necessary

procedural protections in the trial court's review of his Batson

challenge.   United States v. Clemons, 941 F.2d 321, 324 (5th Cir.

1991).

     Lastly, Evans argues that 21 U.S.C. §§ 841(a)(1) and 846 are

unconstitutional and violate the Tenth Amendment to the

Constitution.   His contentions are foreclosed by this court’s

precedent.   This court has determined that §§ 841 and 846 are

valid exercises of Congress' commerce power.   United States v.

Owens, 996 F.2d 59, 61 (5th Cir. 1993); see also United States v.

Lopez, 2 F.3d 1342, 1367 n.50 (5th Cir. 1993), aff’d, 115 S. Ct.

1624, 1630-31 (1995) (reaffirming that all drug trafficking,

intrastate as well as interstate, is subject to regulation under

the Commerce Clause).   Sections 841 and 846 also do not violate
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                                -3-

the Tenth Amendment.   Owens, 996 F.2d at 60-61 (if the challenged

statute is a proper exercise of congressional power under the



Commerce Clause, the statute does not violate the Tenth

Amendment).

     AFFIRMED.
