                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-5285



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


MICHAEL BURNS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.  David A. Faber, Chief
District Judge. (5:03-cr-00030-1)


Submitted: May 30, 2007                        Decided: July 10, 2007


Before MICHAEL, TRAXLER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jason D. Parmer, PARMER LAW OFFICE, Hinton, West Virginia, for
Appellant. Charles T. Miller, United States Attorney, Monica L.
Dillon, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                  After his initial sentence was vacated, Michael Burns was

resentenced to eighty-four months in prison* for distribution of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (2000).

Burns argues in this appeal that he should not have been assessed

one    criminal       history   point   for    a   misdemeanor    conviction    for

unemployment fraud.           We affirm.

                  Under the sentencing guidelines, sentences for certain

(listed) specific petty offenses and those “similar to them” are to

be counted when assigning criminal history points only in certain

circumstances.          U.S. Sentencing Guidelines Manual § 4A1.2(c)(1)

(2002).       Burns’s prior crime, unemployment fraud, is not among the

listed offenses; however, “[f]alse information to a police officer”

is listed. Burns contends that unemployment fraud is so similar to

giving false information to a police officer that he should not

have       been    assessed   one   criminal    history   point   for   his   prior

offense.

                  In United States v. Harris, 128 F.3d 850 (4th Cir. 1997),

we     observed that “similar” in § 4A1.2(c) is not defined.                     We

considered approaches used by sister circuits to determine whether

two offenses are similar.           We rejected a multi-factor test used by



       *
      Burns was initially sentenced to 126 months in prison.
However, his sentence was vacated and the matter remanded for
resentencing in light of United States v. Booker, 543 U.S. 220
(2005).

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some courts and approved a test which compares the elements of the

prior offense to the offenses listed in § 4A1.2.            Id. at 853-55.

In Harris, we noted that “a[n] emphasis on the elements comports

with the plain meaning of ‘similar.’”        Id. at 854.

           The elements of Burns’ prior offense of unemployment

fraud   are:   (1)   making   a   false    statement   or   representation

(2) knowing it to be false (3) in order to obtain or attempt to

obtain or increase a benefit to oneself or another (4) under the

employment security law of West Virginia, another state, or the

federal government.    W. Va. Code § 21A-10-7 (2002).         The elements

of this offense are clearly different from those of giving false

information to a police officer.       Therefore, under Harris, Burns’

claim has no merit.

          Our review of the record discloses that Burns’ sentence

was statutorily authorized and falls within the properly calculated

advisory guideline range.     Further, the district court considered

the factors set forth at 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2006) when imposing sentence.       We conclude that the sentence was

reasonable, and we affirm.        See United States v. Green, 436 F.3d

449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006); United

States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005).                 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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