UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 94-5649

JILL MAUREEN ARNOLD,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Bryson City.
Charles H. Haden II, Chief District Judge, sitting by designation.
(CR-93-71)

Submitted: August 22, 1996

Decided: October 8, 1996

Before MURNAGHAN, NIEMEYER, and HAMILTON,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James L. Conner, II, Daniel P. O'Brien, Chapel Hill, North Carolina,
for Appellant. Mark T. Calloway, United States Attorney, Deborah A.
Ausburn, Assistant United States Attorney, Asheville, North Carolina,
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Unpublished opinions are not binding precedent in this circuit.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:

Jill Maureen Arnold was convicted of one count of possession with
intent to distribute methamphetamine, 21 U.S.C.§ 841(a)(1) (1988).
Arnold now appeals her conviction and 120-month sentence. Finding
no error, we affirm.

I

David Holland testified that in May 1993 Arnold asked him if he
would like to buy some methamphetamine. Holland replied that he
would. Arnold said that she had to get it from Roy Keener, one of her
friends. She left and later returned with an eight-ball, or one-eighth
of an ounce of the drug, which she sold to Holland.

Several weeks later, Arnold told Holland that she would like him
to meet Keener. Holland agreed, and Arnold and he drove to Keener's
home, where Keener was attempting to cook oil into methamphet-
amine. Keener asked Holland if he would like to go into business with
Keener and Art Sherman manufacturing and selling the drug. Holland
expressed interest, said that he might be able to sell some drugs, and
discussed chemicals needed for the manufacturing process.

Holland testified that he saw Arnold only once between that day
and the day of his arrest in June. Arnold went to his house with a con-
tainer of the oil used to manufacture methamphetamine. Arnold told
him that she wanted to see if he could cook the oil into the drug.
However, cooking the oil yielded no methamphetamine.

Arnold's conviction resulted from the sale of the eight-ball to Hol-
land. Her presentence investigation report concluded that she was
accountable for that amount, which converted to 3.54 grams, as well
as the 300 grams that a pint container of oil, such as the one she deliv-

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ered to Holland, could be expected to yield. Arnold objected to the
inclusion of the 300 grams.

Arnold did not object to the assumption in the presentence report
that a pint container was involved. Rather, she objected to the conclu-
sion that a pint of oil would yield 300 grams of methamphetamine.
At sentencing the parties agreed that such a container would yield 150
grams, which would reduce the amount for which Arnold was held
responsible to 153.54 grams. The court found as a fact that 153.54
grams constituted relevant conduct. Arnold's resulting base offense
level (and her total offense level) was 26. Factoring her offense level
and her criminal history category of II, Arnold's guideline range was
less than the statutory minimum of ten years. Arnold therefore was
sentenced to the statutory minimum of 120 months. See 21 U.S.C.A.
§ 841(b)(1)(A)(viii) (West Supp. 1996); United States Sentencing
Commission, Guidelines Manual, § 5G1.1(b) (Nov. 1993).

II

Arnold first notes that the indictment charged her with possession
and manufacturing of methamphetamine with intent to distribute,
while the court instructed the jury that it could convict if it found that
she had either possessed or manufactured methamphetamine with
intent to distribute. Arnold complains that the jury charge differed
from the charge in the indictment. Further, because there was abso-
lutely no evidence that she manufactured methamphetamine, Arnold
argues that there was insufficient evidence to convict.

Section 841(a)(1) provides that it is unlawful for any person know-
ingly or intentionally "to manufacture, distribute, or dispense, or pos-
sess with intent to manufacture, distribute, or dispense a controlled
substance." While the statute "is worded in the disjunctive to encom-
pass a number of similar crimes, federal pleading requires that an
indictment charge in the conjunctive to inform the accused fully of
the charges." United States v. Klein, 850 F.2d 404, 406 (8th Cir.)
(internal citation and quotation omitted), cert. denied, 488 U.S. 867
(1988); see United States v. Earl, 42 F.3d 1321, 1327 (10th Cir. 1994)
(same), cert. denied, ___ U.S. #6D6D 6D#, 630 U.S.L.W. 3771 (U.S. 1995)
(No. 94-8405); see also Turner v. United States , 396 U.S. 398, 420
(1970) ("The general rule is that when a jury returns a guilty verdict

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on an indictment charging several acts in the conjunctive, . . . the ver-
dict stands if the evidence is sufficient with respect to any one of the
acts charged.").

Applying these authorities, we find no error in this case. Possession
with intent to distribute a controlled substance violates § 841(a)(1),
and the jury was so charged. The indictment was drafted in the con-
junctive, in accordance with accepted rules of pleading. The jury con-
victed Arnold of violating that statute upon Holland's testimony that
Arnold sold him one-eighth of an ounce of methamphetamine for
$200. This evidence was sufficient to convict Arnold of a § 841(a)(1)
violation. See Glasser v. United States, 315 U.S. 60, 80 (1942). There
was no need to prove additionally that Arnold manufactured metham-
phetamine.

III

Arnold also claims that the district court made two errors at sen-
tencing. First, she contests the amount of methamphetamine attributed
to her. Specifically, Arnold claims that there was no evidence that the
container she delivered to Holland contained one pint of oil. Second,
she claims that the district court should have reduced her offense level
for her allegedly minimal role in the offense.

Arnold raised neither of these claimed errors at sentencing. There
was absolutely no mention of reducing her offense level because of
her role in the offense. Further, at sentencing the parties stipulated
that one pint of oil would yield 150 grams of methamphetamine.
Implicit in this stipulation is the acknowledgment that the container
held one pint of oil. Arnold did not object at sentencing to this conclu-
sion about the amount of oil delivered to Holland. Given the absence
of plain error, her failure to object to the claimed errors in the calcula-
tion of her sentence forfeits her right to raise these claimed errors on
appeal. See United States v. Grubb, 11 F.3d 426, 440-41 (4th Cir.
1993).*
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*Arnold contends that, if she is found to have waived her right to chal-
lenge her sentence, she should be able to claim that her attorney was
ineffective for failing to raise the sentencing issues. It does not conclu-

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IV

We accordingly affirm Arnold's conviction and sentence. We dis-
pense with oral argument because the materials before us reveal that
argument would not aid the decisional process.

AFFIRMED
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sively appear from the materials before us that counsel was ineffective.
We therefore decline to address counsel's effectiveness in this direct
appeal. See United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.
1991), cert. denied, 503 U.S. 997 (1992); United States v. Fisher, 477
F.2d 300, 302 (4th Cir. 1973).

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