                                                Filed:   June 7, 2007

                 UNITED STATES COURT OF APPEALS

                      FOR THE FOURTH CIRCUIT


                           No. 06-1462
               (5:05-cv-00190-BO; 04-00141-5-ATS)



In Re: CHARLES A. WHITE, JR.; ANITA D. WHITE,

                                                             Debtors.
------------------------

INTERNAL REVENUE SERVICE,

                                                Creditor - Appellee,

             versus

CHARLES A. WHITE, JR.; ANITA D. WHITE,

                                               Debtors - Appellants,
               and

JOHN F. LOGAN, Chapter 13 Trustee,

                                                             Trustee.



                            O R D E R


     The court amends its opinion filed April 23, 2007, as follows:

     On page 7, last line of text before footnote 4 -- the words

“the district court’s” are deleted.

     On page 8, first line of text -- the word “its” is deleted.



                                        For the Court - By Direction



                                           /s/ Patricia S. Connor
                                                   Clerk
                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


In Re: CHARLES A. WHITE, JR.;         
ANITA D. WHITE,
                          Debtors.


INTERNAL REVENUE SERVICE,
                Creditor-Appellee,
                 v.                             No. 06-1462
CHARLES A. WHITE, JR.; ANITA D.
WHITE,
               Debtors-Appellants,
                and
JOHN F. LOGAN, Chapter 13 Trustee,
                           Trustee.
                                      
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
                 Terrence W. Boyle, District Judge.
               (5:05-cv-00190-BO; 04-00141-5-ATS)

                      Argued: March 15, 2007

                      Decided: April 23, 2007

   Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.



Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge Michael and Judge Shedd joined.
2                            IN RE: WHITE
                              COUNSEL

ARGUED: Joseph A. Bledsoe, III, Raleigh, North Carolina, for
Appellants. Karen Grace Gregory, UNITED STATES DEPART-
MENT OF JUSTICE, Tax Division, Washington, D.C., for Appellee.
ON BRIEF: John T. Orcutt, Raleigh, North Carolina, for Appellants.
George E. B. Holding, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina; Eileen J.
O’Connor, Assistant Attorney General, Robert W. Metzler, UNITED
STATES DEPARTMENT OF JUSTICE, Tax Division, Washington,
D.C., for Appellee.


                              OPINION

WILLIAMS, Circuit Judge:

   Charles A. White and Anita D. White ("the Whites") appeal from
the district court’s reversal of the bankruptcy court’s order granting
their bankruptcy petition and confirming their plan of reorganization
under Chapter 13 of the Bankruptcy Code. As part of their plan of
reorganization, the Whites proposed to satisfy a secured claim held by
the Internal Revenue Service (IRS) by surrendering part of the prop-
erty securing the claim to the IRS and by paying the remaining
secured value through the plan. The district court agreed with the
bankruptcy court that 11 U.S.C.A. § 1325 (West 2004 & Supp. 2006)
— the Code provision governing the confirmation of a payment plan
under Chapter 13 — in some circumstances permits a Chapter 13
debtor to partially surrender the property securing a claim. Neverthe-
less, the district court reversed the bankruptcy court’s order and
denied confirmation of the plan, concluding that the Whites’ proposal
to surrender property exempted from administrative levy by the IRS
did not constitute a "surrender" under § 1325(a)(5)(C) because the
Whites would retain the "surrendered" property.

   We affirm the district court. The Whites’ proposal to surrender per-
sonal property that the IRS cannot levy on and cannot otherwise col-
lect without resort to litigation does not constitute a "surrender" under
11 U.S.C.A. § 1325(a)(5)(C). We therefore leave for another day the
                               IN RE: WHITE                                 3
question of whether § 1325(a)(5) permits a plan to be confirmed when
a Chapter 13 debtor surrenders only part of the property securing a
claim.

                                      I.

                                     A.

   The facts of this case are undisputed. The Whites failed to pay fully
their federal income taxes for the tax years 1994-2000 and 2002-
2003. On October 30, 2003, the IRS filed a notice of tax lien in Wake
County, North Carolina, with respect to the tax deficiencies for 1994-
1996, perfecting a security interest for $7,006 in all of the Whites’
property.

   On January 13, 2004, the Whites filed a Chapter 13 bankruptcy
petition in the U.S. Bankruptcy Court for the Eastern District of North
Carolina. On schedules attached to the petition, the Whites listed the
IRS as a creditor holding an unsecured priority claim of $1,203 and
an unsecured general claim of $30,648. They did not, however,
include the IRS on the schedule of secured creditors.

   The IRS filed a proof of claim on April 30, 2004, in which it
asserted a claim of $7,006 secured by certain of the Whites’ property.
Shortly thereafter, on June 8, 2004, the Chapter 13 trustee filed a
motion to dismiss the Whites’ bankruptcy case, contending that "[the
Whites’] plan as filed is not feasible and, therefore, will not meet the
requirements of 11 U.S.C. § 1325(a)(1). The Chapter 13 Plan is not
feasible in that it fails to pay secured claims in full and does not pro-
vide dividends to priority and general unsecured creditors." (J.A. at
11.)1

                                     B.

  To qualify for confirmation under Chapter 13, the Whites’ plan
must satisfy the requirements of § 1325(a) of the Bankruptcy Code.
  1
    Citations to "(J.A. at __.)" refer to the Joint Appendix filed by the par-
ties in this appeal.
4                             IN RE: WHITE
The Whites’ treatment of the IRS’s secured claim, in particular, is
governed by subsection (a)(5).2 Under this provision, a plan’s pro-
posed treatment of secured claims will be confirmed if (1) the secured
creditor accepts the plan, see 11 U.S.C.A. § 1325(a)(5)(A); (2) the
debtor invokes the so-called "cram down"3 power, see
  2
    Section 1325(a)(5) of the Bankruptcy Code provides, with exceptions
not relevant here, that the bankruptcy court must confirm a plan of reor-
ganization if
     with respect to each allowed secured claim provided for by the
     plan—
        (A) the holder of such claim has accepted the plan;
        (B)(i) the plan provides that —
            (I) the holder of such claim retain the lien securing such
           claim until the earlier of—
               (aa) the payment of the underlying debt determined under
               nonbankruptcy law; or
               (bb) discharge under section 1328; and
            (II) if the case under this chapter is dismissed or converted
           without completion of the plan, such lien shall also be
           retained by such holder to the extent recognized by applica-
           ble nonbankruptcy law;
        (ii) the value, as of the effective date of the plan, of property
        to be distributed under the plan on account of such claim is not
        less than the allowed amount of such claim; and
        (iii) if—
            (I) property to be distributed pursuant to this subsection is
           in the form of periodic payments, such payments shall be in
           equal monthly amounts; and
            (II) the holder of the claim is secured by personal property,
           the amount of such payments shall not be less than an
           amount sufficient to provide to the holder of such claim
           adequate protection during the period of the plan; or
        (C) the debtor surrenders the property securing such claim to
        such holder . . . .

11 U.S.C.A. § 1325(a)(5) (West 2004 & Supp. 2006).
    3
   Under the "cram down" option, "the debtor is permitted to keep the
property over the objection of the creditor; the creditor retains the lien
                             IN RE: WHITE                              5
§ 1325(a)(5)(B); or (3) the debtor "surrenders" to the creditor the
property securing the claim, see § 1325(a)(5)(C).

   On June 14, 2004, the Whites sent a letter to the IRS requesting
that the IRS amend its proof of claim because the Whites had decided
to surrender part of property securing the IRS’s $7,006 claim. The let-
ter stated that the Whites had decided to surrender their apparel; jew-
elry; certain of their household goods, including their stove and
refrigerator; and their 1995 Plymouth Voyager minivan — property
totaling $4,533 in value. The Whites intended to retain the remaining
$2,473 in property securing the IRS’s tax lien, including a 1995
Chevrolet Silverado truck and two IRA accounts. (J.A. at 12.) In the
letter, the Whites indicated that the value of the surrendered property
should be added to the IRS’s unsecured general claim and subtracted
from the IRS’s secured claim, reducing the secured claim to $2,473.
In other words, the Whites proposed a plan that attempts to invoke
both the "cram down" and "surrender" options under § 1325(a)(5).

   The IRS rejected the Whites’ proposed amendment to its secured
claim and instead, on June 21, 2004, filed an amended proof of claim
reasserting the secured $7,006 claim and asserting an unsecured prior-
ity claim of $3,896 and a general unsecured claim of $19,478.

                                   C.

   On September 24, 2004, the bankruptcy court denied the trustee’s
motion to dismiss the Whites’ bankruptcy case. In denying the trust-
ee’s motion to dismiss, the court reasoned that 11 U.S.C.A. § 1325(a)
did "not preclude [the Whites] from surrendering part of the IRS’s
secured claim, and treating the remaining portion of the claim as
secured to the value of the retained collateral," though the court did
note that in some circumstances it might be unfair to a secured credi-
tor to allow a partial surrender of collateral. (J.A. at 21.)

securing the claim, see § 1325(a)(5)(B)(I), and the debtor is required to
provide the creditor with payments, over the life of the plan, that will
total the present value of the allowed secured claim, i.e., the present
value of the collateral, see § 1325(a)(5)(B)(ii)." Assocs. Commercial
Corp. v. Rash, 520 U.S. 953, 957 (1997).
6                            IN RE: WHITE
   On October 4, 2004, the trustee filed a motion to confirm the
Whites’ amended plan. The IRS then objected to confirmation of the
plan on the grounds that (1) by proposing bifurcation of the IRS’s
secured claim, the plan failed to provide for full payment of the claim,
in violation of 11 U.S.C.A. § 1325(a); (2) the plan was not feasible
because the Whites proposed to surrender personal property, includ-
ing their clothing and household goods, that was necessary for their
continued generation of income and thus for their compliance with the
plan; (3) the plan was proposed in bad faith because the Whites never
actually intended to turn over the property to the IRS; and (4) the
Whites were prohibited by 26 U.S.C. §§ 6311 and 6316 from paying
their federal tax liabilities with personal property. The IRS also
argued that it would be without any means of forcing the Whites to
turn over the collateral securing its claim because the IRS is prohib-
ited by § 6334 of the Internal Revenue Code (IRC) from levying on
the "surrendered" personal property.

   On December 9, 2004, the bankruptcy court denied the IRS’s
objection to the confirmation of the plan. The court affirmed its ear-
lier ruling that partial surrender of the property securing a claim is
permissible under § 1325(a)(5), but the court also went a step further
and concluded that because the IRS asserted that it could not convert
its tax lien on the secured collateral into payment because of the prop-
erty’s exemption from administrative levy, the IRS’s claim was "not
a secured claim, but . . . an unsecured claim." (J.A. at 47.)

                                   D.

   The IRS appealed the bankruptcy court’s order to the district court,
arguing that the bankruptcy court erred (1) in ruling that the IRS’s
claim for $7,006 was unsecured and (2) in holding that partial surren-
der of property in partial satisfaction of a secured claim is permitted
under § 1325(a)(5). On March 6, 2006, the district court reversed the
bankruptcy court’s order, holding first that the IRS’s $7,006 claim
was not rendered unsecured by virtue of the IRS’s inability to convert
the lien into payment. United States v. White, 340 B.R. 761, 765
(E.D.N.C. 2006). The court stated that "the IRS’s inability to levy on
exempt property does not destroy the lien, or make the IRS’s claim
unsecured. . . . This is because a federal tax lien maintains value inde-
pendent of the Government’s ability to proceed against the property
                              IN RE: WHITE                              7
by administrative levy, given the IRS’s ‘considerable arsenal of col-
lection tools.’" Id. at 764. Accordingly, the court held that the IRS’s
claim "remains secured even where the IRS is unable to immediately
seize property secured by a federal tax lien." Id. at 767.

   The district court also reversed the bankruptcy court’s ruling per-
mitting the Whites’ proposed surrender of exempted personal prop-
erty to the IRS. While the court agreed with the bankruptcy court that
"under certain circumstances a debtor may bifurcate a secured claim
and follow more than one" of the options set forth in § 1325(a)(5), it
found that the bankruptcy court erred in finding that "any surrender
of personal property to the IRS was permissible under the circum-
stances of this case." Id. at 766 (emphasis in original). Noting that the
bankruptcy court had accepted the Whites’ proposal "despite the fact
that there were substantial legal obstacles to the IRS’s collection of
the property," id., the district court held that partial surrender of col-
lateral is not an option "[i]f the debtor is prohibited from surrendering
certain property by law," id. The court concluded that by merely pro-
posing a surrender of exempted property, and not actually making the
property available to the IRS, the Whites could not be said "to have
‘surrendered’ their property in any meaningful fashion." Id. at 766-67.

   The Whites timely appealed.4 We have jurisdiction over this appeal
pursuant to 28 U.S.C.A. § 158(d)(1) (West 2006) (conferring jurisdic-
tion on courts of appeals to review final decisions of district courts
reviewing bankruptcy decisions).

                                   II.

                                   A.

   "When reviewing a decision by a district court sitting as an appel-
late court in bankruptcy matters, we apply the same standard of
review as did the district court," Schlossberg v. Barney, 380 F.3d 174,
178 (4th Cir. 2006), which means that we review
  4
   The Whites do not appeal that portion of the district court’s order
reversing the bankruptcy court’s reclassification of the IRS’s claim as an
unsecured claim. There is thus no question on appeal that the IRS’s
$7,006 claim is a secured claim.
8                             IN RE: WHITE
legal conclusions de novo and factual findings for clear error, id.
Because the facts of this case are undisputed, this case presents only
questions of bankruptcy law, and our review is de novo.

   For the Whites to prevail in this appeal, we must conclude both that
their proposal constitutes a "surrender" under § 1325(a) and that
§ 1325(a)(5)’s cram down and surrender options are not mutually
exclusive. The IRS maintains that we do not need to reach the subsid-
iary question of whether § 1325(a)(5) permits the Whites to pursue a
hybrid option, consisting of both cram down and surrender compo-
nents, because the Whites’ proposal does not amount to a "surrender"
as that term is used in § 1325(a)(5)(C). We agree with the IRS that
the Whites’ proposed "surrender" is no surrender at all under
§ 1325(a)(5)(C), and there is therefore no need for us to consider
whether the statute permits the Whites to invoke both the cram down
and surrender options to satisfy the IRS’s secured claim.5

                                   B.

   Although "surrender" is not defined in the Bankruptcy Code, see
generally 11 U.S.C.A. § 101 (West 2004 & Supp. 2006), the word’s
general meaning is not a mystery. The operative phrase in
§ 1325(a)(5)(C), "surrenders the property securing such claim to such
holder," makes it clear enough that the "surrender" spoken of entails
the secured creditor ultimately holding all rights, including the right
    5
   Both the bankruptcy court and district court concluded that
§ 1325(a)(5) in some circumstances permits a debtor to invoke both the
cram down and surrender options. In reaching this conclusion, both
courts focused on the use of the conjunction "or" between subsections
(a)(5)(B) (cram down) and (a)(5)(C) (surrender). Because the Bank-
ruptcy Code provides, as a rule of construction, that "‘or’ is not exclu-
sive," 11 U.S.C.A. § 102(5) (West 2004 & Supp. 2006), the courts
concluded that the plain language of § 1325(a)(5), with its use of "or"
between the cram down and surrender options, permits a debtor to pursue
one or the other or both. Both courts acknowledged that the Fifth Circuit
reached the opposite conclusion in In re Williams, 168 F.3d 845, 847
(5th Cir. 1999) ("Although 11 U.S.C. § 102(5) states that ‘"or" is not
exclusive,’ it does not follow that Congress intended the word ‘or’ to
create a fourth alternative [under § 1325(a)(5)]."). As noted above, we do
not reach this question in this case.
                              IN RE: WHITE                               9
of possession, in the property securing the claim. Thus, one prominent
bankruptcy treatise has defined "surrender" in the § 1325(a) context
as the "relinquishment of any rights in the collateral," including the
right to possess the collateral. 8 Collier on Bankruptcy ¶ 1325.06[4]
(Alan N. Resnick & Henry J. Sommer eds., 15th ed. 2005). This defi-
nition has been formulated by a number of bankruptcy courts called
on to construe § 1325(a)(5)(C). See, e.g., Hosp. Auth. Credit Union
v. Smith (In re Smith), 207 B.R. 26, 30 (Bankr. N.D. Ga. 1997)(con-
cluding that § 1325(a)(5)(C) makes plain that "a debtor must at least
tender possession or control of the collateral to the creditor"); In re
Stone, 166 B.R. 621, 623 (Bankr. S.D. Tex. 1993)(holding that "the
term ‘surrender’ [under § 1325(a)(5)(C)] was contemplated by Con-
gress to be a return of property and a relinquishing of possession or
control to the holder of the claim"). Other legal and non-legal defini-
tions of "surrender" also focus on the complete relinquishment of
rights, see Black’s Law Dictionary 1484 (8th ed. 2005) (defining "sur-
render" as "yielding to another’s power or control" and "giving up of
a right or claim"), Merriam-Webster’s Collegiate Dictionary 1258
(11th ed. 2003) (defining "surrender" as "the action of yielding one’s
person or giving up the possession of something esp. into the power
of another"), including relinquishment of the right to possession, see,
e.g., Black’s Law Dictionary 1484-85 (defining "surrender" in the
landlord-tenant context as the tenant’s "relinquishment of possession
before the lease has expired"), U.C.C. § 3-604(a) (2002) (stating that
one way for an instrument-holder to discharge the obligation of a
party to the instrument is "surrender," i.e., physical delivery or turn
over, of the instrument to the obligated party). At the most basic level,
then, the word "surrender" means the relinquishment of all rights in
property, including the possessory right, even if such relinquishment
does not always require immediate physical delivery of the property
to another.

   The Whites propose to surrender to the IRS, inter alia, their
apparel and a number of household goods, including their stove and
refrigerator.6 The IRC exempts this property from administrative levy
  6
   The IRS also contends that the Whites’ proposal to surrender living
and household necessities (their clothing, stove, and refrigerator) renders
their plan unconfirmable because without these items the Whites will not
10                            IN RE: WHITE
by the IRS. See 26 U.S.C.A. § 6334(a) (West 2002 & Supp. 2006)
(exempting from administrative levy "wearing apparel . . . necessary"
for the taxpayer and his family and "fuel, provisions, furniture and
personal effects [up to] $6,250 in value"). In other words, while the
IRC grants the IRS the power to obtain a federal tax lien over "all
property" of a debtor, see 28 U.S.C.A. § 6321 (West 2002 & Supp.
2006), the IRS cannot convert that lien into payment through levy on
the exempted property that the Whites purport to surrender. The net
result is that, in the absence of actual delivery or turnover of the prop-
erty to the IRS, the Whites will retain the very property that they "sur-
rendered" because, as the district court noted, the IRS faces
"substantial legal obstacles" to collecting the property. White, 340
B.R. at 766.

   The Whites concede that the IRS cannot levy on the property that
they propose to surrender, but they note that § 6334(a)’s exemption
from levy does not prevent the IRS from bringing a court action under
§ 7403 of the IRC to enforce its lien rights and convert the property
to the payment of its claim. See 26 U.S.C.A. § 7403(a) (West 2002
& Supp. 2006) (stating that the Attorney General or his delegate may
bring a civil action to enforce a tax lien "whether or not levy has been
made"). While the Whites are correct that nothing bars the IRS from
seeking judicial enforcement of the tax lien,7 the fact that the IRS can

be able to make all the payments under the plan. See 11 U.S.C.A.
§ 1325(a)(6) (West 2004 & Supp. 2006)(stating that for a plan to be con-
firmed, the debtor must "be able to make all payments under the plan and
to comply with the plan"). Without clothing, the IRS contends, the
Whites would not be able to earn the disposable income that will be nec-
essary for payments to the plan’s creditors, and, according to the IRS, "if
[the Whites] were to discontinue using their refrigerator and stove, they
presumably would have to eat at restaurants — drastically increasing
their monthly expenses, and drastically decreasing their disposable
income." (Appellee’s Br. at 27-28.) While the IRS’s argument has cre-
dence, we need not countenance it here, given our conclusion that the
Whites’ proposal is not a "surrender" in any sense under the statute.
   7
     Nothing legally speaking, that is. The IRS argues that there would be
a significant cost-benefit disincentive to seek judicial enforcement of the
tax lien in this case, given the likelihood that the litigation costs would
exceed the value of the relevant property. We note this only to further
illustrate the vacuousness of the Whites’ proposed "surrender."
                             IN RE: WHITE                             11
potentially collect the value of the property only through judicial
enforcement underscores why, in the absence of actual physical turn-
over of the property, the Whites’ proposal is not a "surrender" under
the statute. By insisting that the IRS is not foreclosed from obtaining
the property by way of adversarial litigation, the Whites are all but
conceding that their proposed surrender would not result in their relin-
quishment of all of their legal rights to the property, including the
rights to possess and use it. Normally, "[w]hen a debtor surrenders the
property [securing a claim], a creditor obtains it immediately, and is
free to sell it and reinvest the proceeds." Assocs. Commercial Corp.
v. Rash, 520 U.S. 953, 962 (1997). Under the Whites’ proposed plan,
however, the Whites would not immediately turn the property over to
the IRS. Instead, the Whites would retain the purportedly "surren-
dered" property until the IRS obtained a court judgment subjecting
the exempted property to payment of the IRS’s secured claim or,
according to the Whites, until plan confirmation removed the bar to
administrative levy on the property, thus allowing the IRS to levy
against the property. The IRS certainly would not immediately, or
even with minor delay, obtain the property so that it could sell it. The
Whites’ retention of property that is legally insulated from collection
is inconsistent with surrender.

   There is another problem with the Whites’ argument. The Whites’
proposal would result in the IRS obtaining possession of the property
after confirmation of the plan, see Appellant’s Br. at 25 (stating that
"[u]pon . . . plan confirmation, the IRS is free to exercise its ordinary
collection activities with respect to the property"), but as the district
court noted, "[t]o treat a secured claim as unsecured once surrender
has been proposed by the debtor is insufficient under [§ 1325(a)(5)],"
White, 340 B.R. at 766. While a debtor’s invocation of the cram down
power under § 1325(a)(5)(B) permits a plan to be approved based on
the plan’s provision for payments to the secured creditor, the surren-
der option under § 1325(a)(5)(C) does not reference the plan. A fair
reading of § 1325(a)(5)(C) is thus that the surrender must be com-
pleted at or before the confirmation of the plan. See Chrysler Fin.
Corp. v. Nolan (In re Nolan), 232 F.3d 528, 533 n.8 (6th Cir.
2000)(noting that § 1325(a)(5)(C) "does allow a surrender of collat-
eral, but only pre-confirmation"); 8 Collier on Bankruptcy
¶ 1325.06[4] (noting that a "fair rendition of section 1325(a)(5)(C)
requires that the surrender of the collateral occur before or at confir-
12                            IN RE: WHITE
mation, or at the effective date of the plan"). For this separate reason,
the Whites’ proposal does not "surrender" the property as required by
§ 1325(a)(5)(C).

                                   III.

   Despite the clear signals throughout the course of this litigation that
physical relinquishment of the property was the only potential way to
effect a surrender, the Whites never turned the property over to the
IRS. The Whites’ brief makes clear that such relinquishment of pos-
session was not their aim. See Appellant’s Br. at 25 ("Upon relin-
quishment of the [Whites’] IRS exemption rights as a consequence of
plan confirmation, the IRS is free to exercise its ordinary collection
activities with respect to the property."). We therefore hold that the
Whites’ proposal, which entails their retention of the property that
they purport to surrender to the IRS, does not constitute a "surrender"
as that term is used in § 1325(a)(5)(C) given the significant legal hur-
dles that the IRS faces in collecting the property. If a secured creditor
is legally foreclosed from immediately obtaining the property that a
debtor proposes to surrender and the debtor does not in fact voluntar-
ily relinquish all rights in the property, including the right to posses-
sion, to the secured creditor, then the debtor can in no way be said
to have "surrendered" any of his rights in the property. It would be
an odd thing indeed for us to hold that the Whites’ proposal amounted
to a "surrender" when, under their proposal, the Whites could have
returned home after their confirmation hearing and cooked their eve-
ning dinner in the stove, stored their leftovers in the refrigerator, and
worn the clothes that they had "surrendered" to the IRS. While the
Supreme Court has noted that, from the secured creditor’s perspec-
tive, "surrender and retention are not equivalent acts," Rash, 520 U.S.
at 962, from our perspective, in this case they are more than just une-
quivalent: they are altogether contrary. The judgment of the district
court is therefore affirmed.

                                                             AFFIRMED
