UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4574

BRIAN KEITH CASH,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., Chief District Judge.
(CR-98-15)

Submitted: March 9, 1999

Decided: June 11, 1999

Before WIDENER, ERVIN, and KING, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John J. Korzen, SMITH, HELMS, MULLIS & MOORE, L.L.P.,
Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr.,
United States Attorney, Robert A. J. Lang, Assistant United States
Attorney, Winston-Salem, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Brian Keith Cash appeals his conviction and sentence for posses-
sion with intent to distribute cocaine base in violation of 21 U.S.C.
§ 841(a)(1) (1994). Finding no merit to his claims, we affirm.

Cash asserts that the district court erroneously sentenced him as a
career offender under United States Sentencing Guidelines Manual
("U.S.S.G.") § 4B1.1 (1997). Because this issue was not raised at
trial, this court's review is for plain error only. See United States v.
Olano, 507 U.S. 725 (1993). Plain error requires an error that is clear
or obvious, that affects substantial rights, i.e., is prejudicial to the
defendant, and that seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id. at 732.

There are three criteria for classifying a defendant as a career
offender. First, the defendant must be at least eighteen years old at the
time of the instant offense. Second, the instant conviction must be for
a felony that is either a crime of violence or a controlled substance
offense. Finally, the defendant must have at least two prior felony
convictions for a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1. For purposes of the third criteria, the guidelines
define "prior felony conviction" as "a prior adult federal or state con-
viction for an offense punishable by death or imprisonment for a term
exceeding one year, regardless of whether such offense is specifically
designated as a felony and regardless of the actual sentence imposed."
U.S.S.G. § 4B1.2, comment. n.1. "A conviction for an offense com-
mitted at age eighteen or older is an adult conviction. A conviction
for an offense committed prior to age eighteen is an adult conviction
if it is classified as an adult conviction under the laws of the jurisdic-
tion in which the defendant was convicted." Id.

Cash was sixteen years old when he was arrested for a felony rob-
bery offense in North Carolina. He was originally sentenced to three
years probation. The terms of his probation required him to obey a
curfew, stay away from his codefendants, and to enroll in school or
obtain employment. Cash violated the conditions of his probation and
was sentenced to three years imprisonment as a youthful offender.

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Cash asserts that because the State of North Carolina did not treat him
as an adult following his robbery conviction, the district court erred
in accepting the conviction as a prior felony conviction within the
meaning of § 4B1.1.

North Carolina law provides that a person who commits a criminal
offense after his sixteenth birthday is subject to prosecution as an
adult. See N.C. Gen. Stat. § 7A-524 (1995). At the time Cash commit-
ted the felony robbery the laws of North Carolina provided courts
with the discretion to sentence "youthful offenders" to the custody of
the Secretary of Correction for treatment and supervision as a com-
mitted youthful offender. See N.C. Gen. Stat. § 148-49.14 (1993). A
"youthful offender" was defined as a person under twenty-one years
of age in the custody of the Secretary of Correction or a person under
twenty-five years of age in the custody of the Secretary of Correction
who had not yet been convicted of certain violent felony offenses. See
N.C. Gen. Stat. § 148-49.11 (1993). The purpose of this sentencing
scheme was to provide courts with an alternative to sentencing youth-
ful offenders. See N.C. Gen. Stat. § 148-49.10 (1993); Porter v.
Newkirk, 539 F. Supp. 150 (E.D.N.C. 1982). Sentencing courts
retained jurisdiction to impose a jail sentence after making an express
determination that the eligible defendant would not benefit from
youthful offender status. See id. at 151.

Cash is correct in asserting that the State of North Carolina opted
to treat him as a youthful offender when sentencing him after he vio-
lated the terms of his probation imposed after his robbery conviction.
However, because the sentencing court exercised its discretion to sen-
tence Cash as a youthful offender, this does not mean that the State
of North Carolina did not classify his conviction as an adult convic-
tion. Notably, Cash does not assert that he was prosecuted and con-
victed as a juvenile. The statutory scheme providing for the youthful
offender sentencing option does not alter the fact that Cash was con-
victed as an adult and was subject to being sentenced as an adult
under the laws of North Carolina. Accordingly, we can not find that
the district court plainly erred in adopting the recommendation set
forth in Cash's presentence report to consider his North Carolina rob-
bery conviction a "prior felony conviction" for purposes of sentencing
him as a career offender under U.S.S.G. § 4B1.1.

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We find no merit to Cash's claim that the district court committed
plain error in not finding that the government violated 18 U.S.C.
§ 201(c)(2) (1994), by presenting testimony from a witness who had
been promised leniency in exchange for her testimony. Every Circuit
that has addressed the issue has ultimately concluded that government
promises of the kind offered in this case do not violate § 201. See
United States v. Lowery, ____ F.3d ___, 1999 WL 46835, at *3
(11th Cir. Feb. 3, 1999) (citing numerous cases and recognizing that
every Circuit court and every district court except one has reached
this conclusion). In light of the longstanding government practice of
offering leniency to witnesses in exchange for testimony and the lack
of authority supporting Cash's claim, we find no error in the district
court's determination that § 201 was not violated.

We therefore affirm Cash's conviction and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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