UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4993

HENRY CLIFFORD BYRD, SR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
Frank W. Bullock, Jr., Chief District Judge.
(CR-83-52)

Submitted: August 11, 1998

Decided: September 1, 1998

Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Louis C. Allen, III, Federal Public Defender, Thomas C. Cochran,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Walter C. Holton, Jr., United States Attorney, Benjamin H.
White, Jr., Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Henry C. Byrd, Sr., appeals from the district court's order revoking
his probation and sentencing him to eighteen months imprisonment.
Byrd claims that, because the district court did not include the terms
and conditions of probation in its oral pronouncement of his sentence,
it lacked the authority to revoke that probation. Because the terms and
conditions of Byrd's probation were clearly identified in the judgment
and commitment order, and because Byrd does not deny committing
the offense underlying the revocation of his probation, we affirm.

Byrd was convicted in 1983 of four counts of knowingly making
false statements to a grand jury in connection with its investigation
into the shooting deaths of two individuals during a confrontation
between the Ku Klux Klan and an anti-Klan organization in 1979.
Byrd was sentenced to a five-year active term, a five-year suspended
term, and five years probation. The district court orally pronounced
Byrd's sentence as follows:

          Counts One and Three are consolidated and the judgment is:
          It is adjudged that the Defendant is hereby committed to the
          custody of the Attorney General of the United States or his
          authorized representative for imprisonment for a term of
          five years, to commence at such time as the United States
          Marshal gains custody. Counts Two and Four are consoli-
          dated for judgment. It is adjudged that the Defendant is
          committed to the custody of the Attorney General of the
          United States or his authorized representative for imprison-
          ment for a term of five years consecutively. Execution of the
          prison sentence is suspended and the Defendant is placed on
          probation for a period of five years, to commence at the
          expiration of the five year active prison sentence imposed in
          Counts One and Three.

                    2
In its written judgment and commitment order, the general terms of
Byrd's probation were listed, including the requirement that he "re-
frain from violation of any law (federal, state, and local)."

In January 1990, while serving the five-year term of probation,
Byrd was convicted of second degree rape in Maryland and sentenced
to fifteen years imprisonment. After serving his state sentence, he was
released to federal authorities in October 1997. In November 1997,
the district court held a hearing to determine whether Byrd's proba-
tion should be revoked. At the hearing, Byrd claimed that, because the
district court had not included in its oral pronouncement of his origi-
nal sentence the conditions of probation, the court lacked the author-
ity to revoke that probation. The district court disagreed and revoked
Byrd's probation after finding that he had violated a condition thereof
and sentenced him to eighteen months imprisonment. Byrd appeals.

Byrd's contention that there is a conflict between the written judg-
ment and the sentence announced in open court is without merit. We
find no conflict between the written judgment in this case and the oral
pronouncement of sentence. The listing of the conditions of probation
in the written judgment merely serves to clarify the oral pronounce-
ment of probation and, therefore, prevails. See United States v.
Garcia, 37 F.3d 1359, 1368 (9th Cir. 1994) (holding that, when there
is an ambiguity in the oral pronouncement of a sentence, the written
judgment is used to resolve that ambiguity). Accordingly, Byrd's sen-
tence is affirmed. 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 in the decisional process.

AFFIRMED

                    3
