UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4760

STEPHEN C. THOMPSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, Senior District Judge.
(CR-95-69)

Submitted: February 10, 1998

Decided: February 26, 1998

Before MOTZ, Circuit Judge, and HALL and
PHILLIPS, Senior Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Cheryl J. Sturm, Westtown, Pennsylvania, for Appellant. Rebecca A.
Betts, United States Attorney, Michael L. Keller, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Appellant Stephen Thompson pled guilty to distribution of cocaine
base.1 After his direct appeal was dismissed for failure to file a timely
notice of appeal, Thompson moved for habeas corpus relief under 28
U.S.C.A. § 2255 (West 1994 & Supp. 1997) on various grounds,
including ineffective assistance of counsel. Acting on that motion, the
district court vacated and reinstated Thompson's sentence, thus allow-
ing him another opportunity to perfect a direct appeal. Finding no
error in the disposition of Thompson's § 2255 motion or the underly-
ing criminal proceedings, we affirm.

In May 1995, a federal grand jury indicted Thompson on numerous
drug charges.2 After initially pleading not guilty, Thompson entered
into a plea agreement with the government. He pled guilty in Septem-
ber to one count of distribution of cocaine base, 3 and was sentenced
to 210 months imprisonment. Thompson's notice of direct appeal was
untimely filed, and this court granted the government's motion to dis-
miss the appeal as untimely.4

In April 1997, Thompson moved for habeas corpus relief under
§ 2255, claiming among other things that his counsel had been inef-
fective by failing to file a timely notice of appeal. The district court,
following the procedure endorsed by this circuit in United States v.
Peak, 992 F.2d 39 (4th Cir. 1993), granted Thompson relief by vacat-
ing and immediately reimposing his judgment of conviction, thus
allowing him another opportunity to appeal, but denied his other
claims. Thompson then timely appealed from the judgment in his
habeas action and from the newly reinstated judgment in the underly-
ing criminal proceedings.
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1 See 21 U.S.C. § 841(a)(1) (1994).
2 See 21 U.S.C. §§ 841(a)(1), 846 (1994).
3 Id.

4 See United States v. Thompson , No. 96-4180 (4th Cir. July 12, 1991)
(unpublished).

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First, Thompson contends that the district court erred by merely
reimposing his original sentence in order to restore his appellate rights
instead of ordering a new presentence report and conducting a new
sentencing hearing. This claim is without merit because the district
court's action was totally consistent with this court's decision in Peak.5

Second, Thompson asserts that the district court abused its discre-
tion by failing to conduct an evidentiary hearing on his claims that
counsel was ineffective at sentencing and that the government
breached the plea agreement. Our review of the record discloses the
district court did not abuse its discretion by failing to hold an eviden-
tiary hearing.6 The record demonstrates that Thompson understood his
rights and consented to the withdrawal of objections to the presen-
tence report. Further, bald allegations of a verbal promise by the gov-
ernment are insufficient to mandate a hearing.

Third, Thompson claims that the plea agreement's use of "cocaine
base" instead of "cocaine base aka `crack,'" as in the indictment, led
him to believe that he was pleading guilty to a lessor offense than was
charged in the indictment. Thompson's claim is without merit. Con-
trary to Thompson's assertions, the sentencing guidelines state that
cocaine base means crack,7 and the clear precedent of this circuit is
that the terms cocaine base and crack are synonymous.8 Moreover,
Thompson's sentence of 210 months does not exceed the twenty-year
maximum sentence contained in the plea agreement; thus, Thompson
received the benefit of his bargain.

Finally, Thompson contends that his plea agreement was premised
upon a verbal promise by the government that it would move under
FED. R. CRIM. P. 35 for a reduction in sentence. Thompson's claim is
without merit because the government only offered the possibility of
moving for a reduction in sentence. Because the government retained
discretion to file a Rule 35 motion and Thompson failed to allege an
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5 See Peak, 992 F.2d at 42.

6 See Raines v. United States, 423 F.2d 526, 529-30 (4th Cir. 1970).
7 See U.S. SENTENCING GUIDELINES MANUAL§ 2D1.1(c), note (D) (1997).

8 See United States v. Fisher, 58 F.3d 96, 98-99 (4th Cir. 1995).

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unconstitutional motive for the failure to file, Thompson's claim is
without merit.9

For the reasons stated herein, we affirm the judgments of the dis-
trict court in Thompson's habeas action and in the underlying crimi-
nal action proceedings. 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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9 See United States v. Wallace, 22 F.3d 84, 87 (4th Cir. 1994).

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