UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 98-6241

LLOYD C. PAYNE,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                   No. 98-6549

LLOYD C. PAYNE,
Defendant-Appellee.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge,
sitting by designation.
(CR-89-234-WMN, CA-97-938-HNM)

Submitted: December 29, 1998

Decided: January 20, 1999

Before ERVIN and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

Lloyd C. Payne, Appellant Pro Se. Richard Charles Kay, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Lloyd C. Payne appeals from the district court's order granting in
part and denying in part his motion for relief filed pursuant to 28
U.S.C.A. § 2255 (West 1994 & Supp. 1998), and the Government has
filed a cross-appeal. On appeal, Payne alleges that: (1) his criminal
history score should be reduced by two points because his 1982 state
conviction was not a felony; (2) the district court should have ordered
a new presentence report before resentencing him, rather than relying
on the original report prepared in 1990; and (3) the district court
abused its discretion by resentencing him at the top of the Guidelines
range. The Government argues in its cross-appeal that the district
court clearly erred in finding that Payne's 1982 conviction was a mis-
demeanor, vacating his felon-in-possession convictions and sentence,
and resentencing him to a shorter term of incarceration. Because we
find that Payne's claims are without merit and that the district court
clearly erred in finding that his 1982 state conviction was a misde-
meanor, we grant a certificate of appealability, affirm the district
court's order in part, vacate in part, and remand this case to the dis-
trict court with instructions to reinstate Payne's original convictions
and sentences.

Payne was convicted by a jury in 1990 of two counts of distribution
of cocaine (counts one and two), one count of attempting to distribute
500 or more grams of cocaine (count three), and two counts of being

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a felon in possession of a firearm (counts four and five). At sentenc-
ing, the district court added two points to Payne's criminal history
score for counts one and two based on a 1982 state felony conviction
for possession with intent to distribute two pounds of marijuana,1
resulting in concurrent 115-month sentences. The Government also
relied on the 1982 conviction to seek an enhanced penalty for count
three pursuant to 21 U.S.C. § 851 (1994), which resulted in Payne
being sentenced to the mandatory minimum sentence of ten years for
this offense, to be served concurrently with the sentences in counts
one and two. Finally, the Government relied on the 1982 conviction
to support the felon-in-possession convictions. The district court sen-
tenced Payne to a total of twenty-seven months for these offenses, to
be served consecutively with the sentences in counts one, two, and
three.

We affirmed Payne's convictions and sentences. See United States
v. Payne, 954 F.2d 199 (4th Cir. 1992). Payne did not challenge the
district court's characterization of the 1982 state conviction as a fel-
ony at trial or on direct appeal. In his § 2255 motion, Payne alleged
for the first time that the state court found that the amount of mari-
juana was insufficient to show intent to distribute and reduced his
conviction to simple possession -- a misdemeanor. Although Payne
offered no evidence to support this claim, he nevertheless asserted
that because he was only convicted of a misdemeanor, the evidence
was insufficient to support his felon-in-possession convictions and the
enhancement to the mandatory minimum sentence. The Government
did not address the merits of Payne's assertions in its answer, instead
arguing that Payne waived this issue by failing to raise it at trial or
on direct appeal. In his reply, Payne alleged for the first time that he
should be excused from this failure because counsel rendered ineffec-
tive assistance.

The district court found that since the Government did not dispute
Payne's claim that his 1982 state conviction was a misdemeanor, it
must be true, and, therefore, counsel did render ineffective assistance.
See United States v. Payne, 990 F. Supp. 412 (D. Md. 1998). As a
result, the court vacated the felon-in-possession convictions and sen-
tence, vacated the mandatory minimum sentence as to count three,
_________________________________________________________________
1 See U.S. Sentencing Guidelines Manual § 4A1.1(b) (1997).

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and resentenced Payne to the Guidelines maximum (115 months) on
that count. The convictions and sentences for counts one and two
were not changed.

Payne's claim that the district court erred by imposing a sentence
at the high end of the Guidelines range is not reviewable. See United
States v. Jones, 18 F.3d 1145, 1151 (4th Cir. 1994). We find that
Payne failed to show that the district court incorrectly calculated his
Guidelines range, and there is no evidence that the sentence was
based on an unconstitutional classification such as race. See United
States v. Holmes, 60 F.3d 1134, 1137 (4th Cir. 1995).

We further find that the district court's conclusion that Payne's
1982 conviction was a misdemeanor was clearly erroneous.2 The dis-
trict court's decision was based on the erroneous assumption that the
Government did not dispute Payne's allegation that his 1982 convic-
tion was a misdemeanor. Our review of the record, however, reveals
that the Government consistently maintained that the conviction was
a felony in its motion for an enlargement of time in which to file an
answer to Payne's § 2255 motion and in its motion for reconsidera-
tion. More importantly, the record contains a certified copy of
Payne's 1982 conviction, which clearly shows that he was convicted
of possession of marijuana with intent to distribute; a felony under
Maryland law. See Md. Code Ann., Article 27§ 286 (1996). Aside
from his own self-serving allegations, Payne failed to present any evi-
dence showing that this conviction was later vacated or otherwise
reduced to a misdemeanor.

We therefore grant a certificate of appealability, affirm the district
court's order in part, vacate in part, and remand the case with instruc-
tions to reinstate Payne's original convictions and sentences.3
_________________________________________________________________
2 As a threshold matter, Payne had the affirmative duty to show that the
information in the presentence report (which characterized his 1982 con-
viction as a felony) was incorrect; mere objections are insufficient. See
United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). In the present
case, Payne failed to provide any evidence, aside from his own bald
assertions, showing that his conviction was reduced to a misdemeanor.
3 Because the record shows that Payne was convicted of a felony, his
claims concerning the calculation of his criminal history score and the
need for a new presentence report fail.

                    4
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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