UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                     No. 97-4588
GEORGE MICHAEL MATHENY, a/k/a
Rocco,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-97-27)

Submitted: June 9, 1998

Decided: June 30, 1998

Before WIDENER and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Karyn M. Schmidt, MEYER, DARRAGH, BUCKLER, BEBENEK
& ECK, Charleston, West Virginia, for Appellant. Rebecca A. Betts,
United States Attorney, Miller A. Bushong, III, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

George Michael Matheny appeals the 98-month sentence he
received after he pled guilty to aiding and abetting the possession of
methamphetamine with intent to distribute, 21 U.S.C.A. § 841 (West
1981 & Supp. 1998), 18 U.S.C. § 2 (1994), and possession of a fire-
arm during a drug trafficking crime, 18 U.S.C.A.§ 924(c) (West
Supp. 1998). He maintains that his prior sentence of a fine and costs
for brandishing a deadly weapon should have been excluded from his
criminal history score under U. S. Sentencing Guidelines Manual
§ 4A1.2(c) (1995). We find that his criminal history was correctly cal-
culated and affirm.

Guideline section 4A1.2(c)(1)-(2) excludes from the criminal his-
tory calculation certain minor offenses such as hitchhiking. Other
specified offenses are excluded if the sentence imposed was less than
one year probation or thirty days imprisonment and it is not similar
to the instant offense. A prior sentence for an offense which is similar
to a listed offense in either category may also be excluded.

As calculated by the probation officer, Matheny had thirteen crimi-
nal history points, which placed him in category VI. Elimination of
the one disputed criminal history point assigned for the brandishing
conviction would have moved Matheny into category V and reduced
his guideline range. Guideline section 4A1.2(c) does not list brandish-
ing a weapon as an excludable offense, but Matheny argued that bran-
dishing was similar to disorderly conduct or disturbing the peace,
offenses excludable from the criminal history calculation under USSG
§ 4A1.2(c)(1), and therefore should have been excluded. The district
court summarily overruled his objection. Matheny renews his argu-
ment on appeal.

In United States v. Harris, 128 F.3d 850, 854-55 (4th Cir. 1997),
this court expressed approval of an "elements" test for determining

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whether offenses are "similar," and rejected a"multi-factor" test.
Under West Virginia law, the elements of brandishing a weapon are
that a person (1) is armed, (2) with a firearm or deadly weapon, and
(3) carries, brandishes, or uses the weapon, (4) in a manner to cause
or threaten a breach of the peace. W. Va. Code § 61-7-11 (1997). The
elements of disorderly conduct or disturbing the peace are that a per-
son (1) in a specified common area, (2) disturbs the peace of others,
(3) by violent, profane, indecent, or boisterous conduct or language,
or by unreasonably loud noise intending to cause annoyance or alarm
to another, and (4) persists in the conduct after being told to stop by
a law enforcement officer. W. Va. Code § 61-7-11a (1997). We find
that the elements of the two offenses are not similar because the
offense of brandishing requires the presence of a firearm or other
deadly weapon while the offense of disorderly conduct or disturbing
the peace does not. Consequently, we find that the district court cor-
rectly included the sentence for brandishing in Matheny's criminal
history calculation.

The sentence is therefore affirmed. 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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