UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5764

STAFFORD MARK COX, a/k/a Mark,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CR-95-143-A)

Submitted: June 20, 1996

Decided: July 17, 1996

Before HALL, WILKINS, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

E. Blair Brown, BROWN & STAMBAUGH, Alexandria, Virginia,
for Appellant. Helen F. Fahey, United States Attorney, Michael E.
Rich, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Stafford Mark Cox appeals the 168-month sentence he received
after his guilty plea to four counts of crack cocaine distribution, 21
U.S.C.A. § 841 (West 1981 & Supp. 1996). Cox went to trial on three
additional charges: attempted distribution of 62 grams of crack on
October 26, 1994 (Count 5), assault on a federal officer (Count 6),
and using and carrying a firearm during a drug trafficking offense
(Count 7). The district court granted Cox's motion for acquittal on all
three counts. Nonetheless, Cox contends on appeal that the district
court dismissed Count 5 on the government's motion rather than
granting his acquittal motion, and erred in doing so. He also argues
that the court clearly erred in considering the 62 grams of crack
charged in Count 5 as relevant conduct in sentencing him. United
States Sentencing Commission, Guidelines Manual , §§ 1B1.3, 2D1.1
(Nov. 1994). We affirm.

Cox sold crack to an undercover officer on four occasions. A fifth
sale was arranged at which Cox was to be arrested. Cox met the agent
at a gas station but, while the transaction was in progress, he noticed
the arrest team moving in and he escaped, ramming the agents' van
and another car in the process. A firearm was found that night near
the gas station along the route Cox took. A plastic bag containing 62
grams of crack (the amount negotiated) was found in the same area
the next day.

The district court found that the evidence was insufficient to sus-
tain convictions for assault or for using and carrying a firearm. The
record discloses that the district court granted the defense motion to
acquit on Count 5 as well, although it found that the government had
produced enough evidence to submit the charge of attempted distribu-
tion to the jury. Because Cox had already pled guilty to four counts
of distribution, the government agreed that there was little practical
reason to proceed on the additional count of attempted distribution
and did not oppose the motion to acquit.

Cox challenges the district court's finding that the government
made a prima facie case of attempted distribution. The question is of

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no import because the court granted the motion to acquit. Cox also
contends that the negotiated 62 grams of crack should not have been
considered as relevant conduct because the attempted distribution was
not shown by a preponderance of the evidence. The 62 grams was
properly considered as relevant conduct simply because there was
unrefuted evidence that Cox agreed to sell that amount to the agent.
USSG § 2D1.1, comment. (n.12).

We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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