UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4581

ANDRE R. SMITH, a/k/a Erco,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-94-79)

Submitted: August 22, 1997

Decided: September 4, 1997

Before HAMILTON, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed unpublished per curiam opinion.

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COUNSEL

David Preston Baugh, Richmond, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, M. Hannah Lauck, Assistant United
States Attorney, Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Andre R. Smith pled guilty to conspiracy to distribute and to pos-
sess with intent to distribute cocaine base and heroin, 21 U.S.C. § 846
(1994), money laundering, 18 U.S.C.A. §§ 2, 1956(a)(1)(B)(i) (West
1994 & Supp. 1997), and using or carrying a firearm during and in
relation to a drug trafficking crime, 18 U.S.C.A.§ 924(c) (West Supp.
1997). In his plea agreement, Smith acknowledged that he could not
withdraw his plea based on the sentence he received. The plea agree-
ment incorporated a Statement of Facts in which Smith acknowledged
that he conspired "to distribute in excess of one and one half kilo-
grams of cocaine base (`crack')." The plea agreement further stated
that Smith "adopts the Statement of Facts and agrees that the facts
therein are accurate in every respect and that had the matter pro-
ceeded to trial, the United States would have proved those facts
beyond a reasonable doubt." Smith also waived the right to appeal his
sentence and the waiver provision was brought to his attention by the
district court during the guilty plea colloquy.

At Smith's first sentencing in July 1996, the district court departed
downward based on a proposed amendment to the sentencing guide-
lines for crack offenses. See U.S. Sentencing Guidelines Manual,
§ 2D1.1 (1995). The government appealed the departure. We vacated
the sentence and remanded for resentencing without the departure.
See United States v. Smith, No. 95-5462 (4th Cir. May 23, 1996)
(unpublished).

Before he was resentenced, Smith filed a sentencing memorandum
in which he asserted that the government had not proved that the sub-
stance for which he was charged and convicted was crack. He pointed
out that the term "crack" is described in the applicable guideline as
a mixture of cocaine hydrochloride and sodium bicarbonate (baking
soda).1 Smith argued that, without evidence of whether the "rock"
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1 Section 2D1.1 provides:"`Cocaine base,' for the purposes of this
guideline, means `crack.' `Crack' is the street name for a form of cocaine
base, usually prepared by processing cocaine hydrochloride and sodium
bicarbonate, and usually appearing in a lumpy, rocklike form." U.S.S.G.
§ 2D1.1(c), n.*(D).

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cocaine he conspired to distribute was prepared with sodium bicar-
bonate or by some other means, he should be sentenced using the pen-
alties for powder cocaine. During the resentencing hearing, Smith's
attorney proffered that Smith had not cooked the rock cocaine he sold,
implying that the ingredients were unknown. He stated at one point
that, if the plea agreement had resulted from a mutual mistake about
what the government would have to prove to show that Smith's
offense involved crack, that portion of the agreement was void and,
if it could not be renegotiated, the agreement was off. The attorney
volunteered that he might have been ineffective in failing to advise
Smith that the government would have to prove the method of cook-
ing the substance he had sold. The district court rejected Smith's
argument, finding that the stipulation in the Statement of Facts made
it "crystal clear" that the offense involved crack. The court imposed
a sentence of 210 months, the bottom of the guideline range. Smith
now appeals his conviction,2 arguing that the district court should
have voided the plea agreement.

Federal Rule of Criminal Procedure 32(e) permits withdrawal of a
guilty plea after sentencing only on direct appeal or pursuant to a
motion under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997). The
defendant must show that withdrawal of the plea is necessary to cor-
rect a miscarriage of justice. See United States v. Davis, 954 F.2d 182,
184 (4th Cir. 1992). The government contends that Smith's attempt
to void his plea agreement at the resentencing hearing was precluded
by Fed. R. Crim. P. 32(e) because he did not challenge the agreement
in a cross-appeal after he was first sentenced. Arguably, the district
court only could have allowed Smith to withdraw his plea by constru-
ing his challenge to the validity of the plea agreement as a § 2255
motion. "To prevail under § 2255 the defendant must show that the
plea proceeding was tainted by `a fundamental defect which inher-
ently results in a complete miscarriage of justice' or `an omission
inconsistent with the rudimentary demands of fair procedure.'" See
United States v. Farley, 72 F.3d 158, 162 (D.C. Cir. 1995) (quoting
Hill v. United States, 368 U.S. 424, 428 (1962)). Nevertheless, we
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2 Smith states that he is also appealing his sentence; however, he argues
only that the plea agreement is void or voidable. In any case, we do not
have jurisdiction to review the sentence because Smith made a valid
waiver of his right to appeal it.

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reach the issue before us in this appeal from resentencing because
Smith would be entitled to withdraw his plea if he were able to show
that his plea was fatally defective. See United States v. Abernathy, 83
F.3d 17, 19 (1st Cir. 1996) (under either standard, most significant
factor is whether plea was knowing and voluntary).

We find that Smith fails to make the necessary showing. The sen-
tencing guidelines distinguish "crack," the lumpy, rock-like form of
cocaine base, from other forms of cocaine base such as coca paste.
U.S.S.G. App. C, amd. 487. The government was not required to
prove that the crack Smith sold was prepared with sodium bicarbon-
ate. Consequently, Smith's plea agreement was not based on a mate-
rial mistake and is not void.

Accordingly, we affirm the conviction. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED

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