UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                    No. 99-4136
ERNEST MELVIN TUCKER, a/k/a Sonny
Tucker,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
Irene M. Keeley, District Judge.
(CR-95-11)

Submitted: August 31, 1999

Decided: September 24, 1999

Before WIDENER, MURNAGHAN, and MICHAEL,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

S. Sean Murphy, MURPHY & FITZ, P.L.L.C., Morgantown, West
Virginia, for Appellant. David E. Godwin, United States Attorney,
Thomas O. Mucklow, Assistant United States Attorney, Martinsburg,
West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Ernest Melvin Tucker was sentenced in 1997 to 120 months
imprisonment for possession of a Marlin rifle in the summer of 1994
while a convicted felon, see 18 U.S.C.A.§ 922(g)(1) (West Supp.
1999) (Count 8), a concurrent 348-month sentence for possession of
crack cocaine with intent to distribute in October 1994,1 see 21 U.S.C.
§ 841(a) (1994) (Count 35), and a consecutive 60-month sentence for
using or carrying a firearm during and in relation to a drug offense
in June 1994, see 18 U.S.C.A. § 924(c) (West Supp. 1999) (Count
18). He appealed his sentence, arguing in part that the government
had breached the plea agreement by arguing for application of the
cross reference in U.S. Sentencing Guidelines Manual
§ 2K2.1(c)(1)(B) (1995),2 which raised the offense level for Count 8
to 41 based on Tucker's state conviction for a felony murder which
was committed in August 1994. We agreed that the plea agreement
had been breached and remanded the case for resentencing to allow
the district court to reconsider application of the cross reference. On
remand, the government took no position on the application of the
cross reference but the district court again found that it applied and
imposed the same sentence. Tucker appeals, contending that the dis-
trict court erred in applying the cross reference, in finding that Count
8 and Count 35 could be grouped together under USSG§ 3D1.2(d),
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1 The court imposed a sentence of 360 months but gave Tucker credit
for 12 months spent in state custody.
2 The cross reference directs that, if the defendant used any firearm in
connection with the commission of another offense, or possessed or
transferred any firearm with the knowledge or intent that it would be
used in connection with another offense, and death resulted, the most
analogous homicide offense guideline should be used if it is greater than
the offense level otherwise determined under § 2K2.1. Application of the
cross reference raised the adjusted offense level for Count 8 from 25 to
43.

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and in finding that the state felony murder conviction was relevant
conduct. We affirm.

The factual basis for Tucker's guilty plea established that he pos-
sessed at least two firearms during the summer of 1994--the Marlin
rifle charged in Count 8 and a pistol--but the weapon used in the fel-
ony murder was never recovered, and the government did not attempt
to prove that it was the firearm charged in Count 8. Tucker contends
that USSG § 2K2.1(c)(1)(B) applies only if the particular firearm
involved in the count of conviction is used to commit another offense.
After a careful review of Tucker's argument, we find that the district
court correctly interpreted the guideline and correctly applied the
cross reference. See United States v. Fortier , 180 F.3d 1217, 1999
WL 445164, at *8 (10th Cir. 1999) (section 1B1.3(a) provides that
cross references are applied in light of relevant conduct; applying
§ 2K2.1(c)).

Next, Tucker argues that the district court erred in finding that
Count 8 and Count 35 could be grouped together under USSG
§ 3D1.2(d) because they involved the same course of conduct. How-
ever, Count 8 and Count 35 were not grouped together, but were
placed in separate groups by the probation officer. We note that, in
his sentencing memorandum submitted before the first sentencing
hearing, Tucker argued that the offense level for the § 922(g) count
should not be enhanced by use of the cross reference, and thus no unit
increase should be made under § 3D1.4 because the offense level for
Count 8 would be more than nine levels less severe than the offense
level for Count 35. Because the district court found that the cross ref-
erence applied to Count 8, the offense levels for the two counts were
less than nine levels apart, and this argument became moot. At the
first sentencing, the district court found that Count 8, the § 922(g)
offense, was an offense which would be grouped under§ 3D1.2(d) if
there were several such counts, and thus, under§ 1B1.3(a)(2), rele-
vant conduct for that count included conduct which was part of the
same course of conduct. This finding was correct;§ 3D1.2(d) states
that offenses covered by USSG § 2K2.1 are to be grouped under that
subsection when there are multiple counts.

Last, Tucker contends that, if Count 8 and Count 35 were not
grouped together under USSG § 3D1.2(d), the"same course of con-

                    3
duct" analysis was unavailable, and the murder could not be relevant
conduct. This argument is without merit because the district court
could consider as relevant conduct any of Tucker's acts which were
part of the same course of conduct as the § 922(g) offense, regardless
of whether Count 8 and Count 35 were in the same or separate
groups. See USSG § 1B1.3(a).

We therefore affirm the sentence. 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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