UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                       No. 97-4918
GARY LEONARD TUNNAGE, a/k/a Gary
Tunnage,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-96-685)

Submitted: March 9, 1999

Decided: April 5, 1999

Before ERVIN, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael S. Seekings, Charleston, South Carolina, for Appellant. Cam-
eron Glenn Chandler, OFFICE OF THE UNITED STATES ATTOR-
NEY, Columbia, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Gary Leonard Tunnage appeals from his conviction, pursuant to a
guilty plea, of one count of possession with intent to distribute
cocaine and cocaine base, commonly known as crack cocaine, in vio-
lation of 21 U.S.C.A. § 841(a)(1) (West 1981 & Supp. 1998). Tun-
nage's attorney has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), certifying that Tunnage's appeal does not present
any meritorious issues, but raising one issue: whether the court com-
mitted reversible error when it sentenced Tunnage based upon the
sentencing guidelines for crack and powder cocaine rather than only
the guideline for powder cocaine. Tunnage was informed of his right
to file a pro se supplemental brief and has not done so. Finding no
reversible error, we affirm.

The court properly determined that Tunnage was competent to
enter a plea and that he understood the charge against him. Tunnage
stated at the plea hearing that he was taking an anti-depressant pre-
scription medication. After questioning Tunnage and his counsel, the
court determined that Tunnage's thought process was not jeopardized
by the medication. The court also informed Tunnage of the maximum
and minimum sentence, the effect of any term of supervised release,
and the possible fine.* Tunnage was also informed that the court was
obligated to consider the applicable Sentencing Guidelines, and
regardless of any promise or prediction of sentence or recommenda-
tion by the Government, the court would decide the sentence. The
court also reviewed the plea agreement. Tunnage stated that he was
not promised anything other than what was in the agreement. He was
informed of the rights he was waiving by entering a guilty plea. The
Government then stated that a search of Tunnage's vehicle after a
traffic stop revealed three packages of cocaine. According to the Gov-
ernment, tests at the Drug Enforcement Administration laboratory
showed that Tunnage was in possession of 1086 grams of cocaine
_________________________________________________________________
*At the time of the plea hearing, it had not been determined whether
the contraband that was found on Tunnage at the time of his arrest was
powder cocaine or crack cocaine. Tunnage was informed of the differ-
ences in the maximum and minimum sentences for each.

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hydrochloride and 518.4 grams of cocaine base. Tunnage stated that
he did not disagree with the Government's factual statement. The
court found a sound factual basis for accepting the guilty plea.

The court properly determined Tunnage's sentence. According to
the presentence investigation report ("PSI"), Tunnage's base offense
level was 36, based on a conversion of the cocaine hydrochloride and
cocaine base into the equivalent of 10,585.2 kilograms of marijuana.
See U.S. Sentencing Guidelines Manual § 2D1.1 & comment. (nn. 6,
10) (1996). The PSI also recommended a 2-level reduction pursuant
to USSG § 2D1.1(b)(4), because Tunnage met the criteria set forth in
USSG § 5C1.2 for limitation on the application of statutory minimum
sentences (the safety valve provision). In addition, the PSI recom-
mended a 3-level reduction for acceptance of responsibility. See
USSG § 3E1.1. Because Tunnage was placed in criminal history cate-
gory I, the sentencing guidelines range was 108 to 135 months'
imprisonment. The PSI noted that the statutory minimum sentence
was ten years. See 21 U.S.C.A. § 841(a)(1), (b)(1)(A) (West 1981 &
Supp. 1998).

At sentencing, there were no objections to the PSI. Without objec-
tion from the Government, the court found Tunnage eligible for the
safety valve provision of USSG §§ 2D1.1(b)(4), 5C1.2, and imposed
a sentence in accordance with the guidelines without regard to the
statutory minimum. Tunnage was sentenced at the low end of the
guidelines range, 108 months' imprisonment.

There is no merit to Tunnage's argument that the court erred by
sentencing him based upon powder cocaine and crack cocaine. A dis-
trict court's findings of fact at sentencing are reviewed for clear error.
See United States v. D'Anjou, 16 F.3d 604, 614 (4th Cir. 1994). At
the plea hearing, Tunnage did not challenge the prosecutor's state-
ment that Tunnage was found in possession of both powder cocaine
and crack cocaine. The record before the court also included the lab
results showing that Tunnage possessed crack cocaine. Thus, it was
not clear error to determine Tunnage's sentence based upon both
powder cocaine and crack cocaine.

Pursuant to the requirements of Anders, this court has reviewed the
record for potential error and has found none. Therefore, we affirm

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Tunnage's conviction and sentence. This court requires that counsel
inform his client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition would be
frivolous, then counsel may move this court for leave to withdraw
from representation. Counsel's motion must state that a copy thereof
was served on the client.

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

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