UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5967

GARY SCOTT WARD,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-95-216)

Submitted: August 27, 1996

Decided: September 19, 1996

Before MURNAGHAN, ERVIN, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Christopher C. Finch, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, John David Kuchta, Special Assistant
United States Attorney, Alexandria, 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Unpublished opinions are not binding precedent in this circuit.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:

Gary Scott Ward appeals the 120-month sentence he received after
he pled guilty to conspiracy to distribute more than 50 grams of crack
cocaine. 21 U.S.C.A. § 846 (West Supp. 1996). He appeals his sen-
tence, contending that the district court erred in finding that his two
criminal history points made him ineligible for a sentence below the
mandatory minimum sentence pursuant to USSG § 5C1.2* even
though the court departed from criminal history category II to cate-
gory I. We affirm.

To be eligible for a sentence under the safety valve provision, a
defendant must not "have more than 1 criminal history point, as deter-
mined under the sentencing guidelines." 18 U.S.C.A. § 3553(f)(1);
USSG § 5C1.2(1). Application Note 1 to section 5C1.2 states that the
phrase "as determined under the sentencing guidelines," means "as
determined under § 4A1.1 (Criminal History Category)." After
reviewing the commentary, the district court decided that USSG
§ 5C1.2 did not apply to Ward because he had been assigned two
criminal history points under USSG § 4A1.1, despite the subsequent
departure to category I, which by definition includes defendants with
zero or one criminal history points. The Second Circuit came to the
same conclusion in United States v. Resto, 74 F.3d 22, 27-28 (2d Cir.
1996).

Ward argues that Resto is not dispositive, and that the result
reached by the district court is unfair because the safety valve provi-
sion was intended to soften the effect of mandatory minimum sen-
tences. However, we are persuaded that the district court and the
Second Circuit correctly interpreted the guideline.

The sentence imposed by the district court is therefore affirmed.
We dispense with oral argument because the facts and legal conten-

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*United States Sentencing Commission, Guidelines Manual (Nov.
1995).

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tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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