                                             Filed:   July 28, 1998

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                             No. 97-7506
                              (CR-93-16)



United States of America,

                                                 Plaintiff - Appellee,

           versus


David Elijah Smith,

                                                Defendant - Appellant.



                              O R D E R



     The court amends its opinion filed July 8, 1998, as follows:

     On the cover sheet, section 6, lines 1-2 -- “Federal Public

Defender’s Office” is corrected to read “United States Attorney’s

Office.”

                                          For the Court - By Direction



                                           /s/ Patricia S. Connor
                                                    Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                               No. 97-7506

DAVID ELIJAH SMITH,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-93-16)

Submitted: June 18, 1998

Decided: July 8, 1998

Before MURNAGHAN and WILKINS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

David Elijah Smith, Appellant Pro Se. William Arthur Webb, UNITED
STATES ATTORNEY’S OFFICE, Raleigh, North Carolina,
for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

David Elijah Smith appeals from the district court's order imposing
sentence on several drug-related crimes following remand from this
court,1 and its order denying Smith's motion filed pursuant to Fed. R.
Crim. P. 33 for a new trial. On appeal, Smith challenges the district
court's construction of his post-trial motion as a motion for a new trial
pursuant to Rule 33. We find that the district court properly construed
Smith's motion, and that its denial of the Rule 33 motion was not an
abuse of discretion. See United States v. Campbell, 977 F.2d 854, 860
(4th Cir. 1992). Next, Smith claims that he was doubly punished for
a single offense. We find this claim to be without merit because Smith
failed to note an objection below, and we find no plain error because
each count charged a separate offense. Smith next challenges the suf-
ficiency of evidence to support his conviction on possession of crack
cocaine. Because we have already determined that the evidence was
sufficient to convict Smith,2 we decline to revisit the issue in this
appeal. Smith also raises three alleged sentencing errors, but only
noted objections in the district court to two. He first claims that the
district court clearly erred by failing to credit him with time served
on a related sentence under USSG § 5G1.3(b). However, we find that
that section has no application here because the term of imprisonment
for which Smith seeks credit was discharged. Smith's second sentenc-
ing claim is that the district court improperly calculated the quantity
of crack involved in Smith's offense. We find this claim to be without
merit because there was sufficient evidence in the record to support
the district court's determination of the quantity of drugs properly
attributable to Smith. Finally, we find no plain error relative to the
remaining sentencing error Smith raises for the first time on appeal,
specifically, that the district court erred in calculating his sentence on
count seven of his indictment.
_________________________________________________________________

1 We remanded the case to the district court for resentencing following
the vacatur of Smith's convictions under 18 U.S.C. § 924(c)(1) for using
and carrying two different firearms during and in relation to separate
drug crimes pursuant to Bailey v. United States , 516 U.S. 137 (1995).

2 See United States v. Smith, No. 94-5531 (4th Cir. Aug. 5, 1995)
(unpublished).

                   2
Accordingly, we affirm Smith's sentence and the district court's
denial of Smith's Rule 33 motion. 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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