UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 97-4524

RODNEY LYNN HAM,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-96-61)

Submitted: February 24, 1998

Decided: March 20, 1998

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Charles Y. Sipe, ST. JOHN, BOWLING & LAWRENCE, Charlottes-
ville, Virginia, for Appellant. Robert P. Crouch, Jr., United States
Attorney, Jean B. Hudson, Assistant United States Attorney, Char-
lottesville, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Rodney Lynn Ham pled guilty to three counts of making a false
statement to obtain a firearm in violation of 18 U.S.C.A.
§ 924(a)(1)(A) (West Supp. 1997), and received a sentence of 27
months imprisonment. He appeals his sentence, alleging that the dis-
trict court incorrectly calculated his guideline range. He also claims
that his guilty plea was involuntary and that the government breached
the plea agreement. We affirm.

In 1995 and 1996, Ham was in debt to Kimaunie Wynter for crack
cocaine. Wynter told Ham he could pay off the debt by purchasing
firearms for him. On three occasions, Ham purchased firearms for
Wynter. Ham's plea agreement contained the following provision:

          I understand that the government will recommend at sen-
          tencing that I receive a sentence of not less than nine months
          incarceration. I understand that at sentencing my attorney
          will request a sentence of not more than nine months incar-
          ceration. I agree that a sentence of incarceration of nine
          months is an appropriate disposition in this case. I under-
          stand and agree that no one has promised me a particular
          disposition in this case, and that the matter of sentencing is
          entirely in the discretion of the court.

In calculating Ham's guideline range, the district court applied the
cross-reference in USSG § 2K2.1(c)(1),1 finding that Ham used the
firearms in connection with the commission of another offense--drug
trafficking. The cross-reference directed the court to apply USSG
§ 2X1.1 in respect to the underlying crime if the resulting offense
level was greater. Applying USSG § 2X1.1 and USSG § 2D1.1, the
guideline applicable to the underlying drug trafficking offense, the
district court settled on a base offense level of 18 (for one and one-
half grams of crack). With an enhancement for possession of a
weapon, USSG § 2D1.1(b)(1), and a reduction for acceptance of
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1 U.S. Sentencing Guidelines Manual (1995).

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responsibility, USSG § 3E1.1, the final offense level was 17.2 Ham
was in criminal history category II,3 which gave him a guideline range
of 27-33 months. The court imposed a sentence of 27 months.

Ham contends that the crack was not relevant conduct under USSG
§ 1B1.3, and therefore the district court erred in applying the cross-
reference to USSG § 2D1.1. The test for whether a weapon is used in
connection with the commission of another offense under USSG
§ 2K2.1(c) is whether the weapon facilitated or potentially facilitated
the other offense. See United States v. Nale, 101 F.3d 1000, 1003-04
(4th Cir. 1996). The test is the same one used to determine whether
a firearm was used in relation to the commission of a drug trafficking
crime under 18 U.S.C.A. § 924(c) (West Supp. 1997). See Smith v.
United States, 508 U.S. 223, 237-38 (1993). In Smith, the Supreme
Court held that bartering a firearm for drugs constitutes using the fire-
arm in relation to a drug trafficking crime. Here, Ham made false
statements in the course of purchasing firearms in order to trade them
for crack. He had already consumed the crack, so the trade was after
the fact. Nonetheless, by paying off his debt in this manner, Ham bar-
tered the firearms for crack. Thus, the crack was a part of Ham's com-
mission of the instant offense. Consequently, we have no difficulty in
finding that the district court correctly determined that Ham used the
firearms in connection with the commission of a drug trafficking
offense and that the crack was relevant conduct.

Next, Ham argues that his guilty plea was not knowing and volun-
tary because he was in effect sentenced for a drug offense but the dis-
trict court failed to inform him about the effect the crack would have
on his sentence. We review the adequacy of a guilty plea de novo. See
United States v. Good, 25 F.3d 218, 219 (4th Cir. 1994). Here, the
exchange of firearms for crack was part of the factual basis for the
plea. The court informed Ham that his sentence would be determined
pursuant to the federal sentencing guidelines. Under Fed. R. Crim. P.
11, the court was not required to identify for Ham which guidelines
might be important or to inform him what the applicable guideline
_________________________________________________________________
2 Calculated under USSG § 2K2.1 without the cross-reference, Ham's
offense level was 15.
3 The court departed from category III to category II under USSG
§ 4A1.3, p.s.

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range would be. See United States v. Goins, 51 F.3d 400, 401 (4th
Cir. 1995); United States v. DeFusco, 949 F.2d 114, 119 (4th Cir.
1991). The court was required to advise Ham of the statutory maxi-
mum and any statutory minimum sentence. The record discloses that
the court fulfilled its obligation. Ham was informed that his plea
exposed him to a maximum sentence of five years (there was no statu-
tory minimum), that the sentence could not be determined until after
the presentence report was prepared, and that a sentence more severe
than expected would not be grounds for withdrawal of the guilty plea.

Finally, we find that the government did not breach the plea agree-
ment. Ham contends that he understood the agreement to mean that
the government would recommend a sentence of nine months. How-
ever, the agreement only required the government to recommend a
sentence of not less than nine months. That recommendation was
made.

Accordingly, we affirm the sentence imposed. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

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