                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4405



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ROBERT LEE THOMPSON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:05-cr-00485-LMB)


Submitted:   June 25, 2007                  Decided:   July 30, 2007


Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Dale W. Dover, Alexandria, Virginia, for Appellant.    Chuck
Rosenberg, United States Attorney, Sean G. Dillon, Special
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          A grand jury indicted Robert Thompson for possession with

intent to distribute five grams of cocaine base, in violation of 21

U.S.C. § 841(a)(1) (2000).       The jury acquitted Thompson of the

possession with intent to distribute charge, but found him guilty

of the lesser-included offense of possession of five grams or more

of cocaine base.     The court sentenced Thompson to sixty months’

imprisonment.

          On appeal, Thompson raises the following issues:              (1)

whether the district court erred in denying Thompson’s motion to

suppress; (2) whether the district court properly calculated the

quantity of cocaine attributable to Thompson; and (3) whether the

district court erred by sua sponte giving an instruction for the

lesser included offense of simple possession of cocaine base.

After thoroughly reviewing the record of trial, we affirm.

          Thompson contends the district court erred in denying his

motion to suppress.       This Court reviews the factual findings

underlying the denial of a motion to suppress for clear error and

its legal conclusions de novo.    United States v. Johnson, 400 F.3d

187, 193 (4th Cir.), cert. denied, 126 S. Ct. 134 (2005).               The

evidence is construed in the light most favorable to the prevailing

party below.    United States v. Seidman, 156 F.3d 542, 547 (4th Cir.

1998).   The    uncontroverted   evidence   is   that   a   trio   of   law

enforcement officers in an unmarked police car observed Thompson


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driving his vehicle without a seat belt. Virginia Code § 46.2-1094

requires front seat occupants of a motor vehicle to wear a seat

belt.   We conclude the officers were permitted to make a lawful

stop pursuant to this violation.

          Moreover, the officers had probable cause to believe that

the driver of the vehicle was the subject of an arrest warrant,

because a warrant was outstanding for the registered owner of the

vehicle. Thompson argues that because the warrant was actually for

another person, the arrest was invalid and in bad faith.   However,

the investigators determined through a data base search that a

warrant was outstanding for a Robert Thompson.    During the stop,

the driver was identified as Robert Thompson. Thompson matched the

description in the warrant except for the weight, a personal

characteristic that is subject to change. When investigators asked

Thompson to exit the vehicle in order to verify Thompson’s identity

and to view an object Thompson was attempting to hide, a plastic

bag containing pills fell to the ground.   We conclude the officers

acted reasonably and in good faith, as both the outstanding warrant

and seat belt violation were sufficient to justify the stop of

Thompson’s vehicle.

          Finally, Thompson argues that his stop, search, seizure,

and arrest were pretextual or based on racial profiling.   We find

this argument unsupported by the record.




                              - 3 -
          Thompson   next   argues   the   quantity   of    cocaine   base

attributed to him should only be 4.8 grams of cocaine base because

that was the amount of the active substance found in the mixture.

The net weight of the mixture was 7.9 grams, which included the

cocaine base and the substances mixed in with it.             Under U.S.

Sentencing Guidelines § 2D1.1(c)(A), “[u]nless otherwise specified,

the weight of a controlled substance set forth in the table refers

to the entire weight of any mixture or substance containing a

detectable amount of the controlled substance.”            Moreover, this

Court has held that under the plain text of the guidelines,

district courts must apply the gross weight theory, which is

calculated by combining the gross weight of the narcotic plus any

carrier mediums.   United States v. Meitinger, 901 F.2d 27, 29 (4th

Cir. 1990).   We find the issue is without merit.

          Thompson next argues that the district court erred by

instructing the jury on the lesser included offense of simple

possession. Thompson argues the instruction and conviction for the

lesser included offense violates the due process, double jeopardy,

indictment and notice clauses of the Fifth and Sixth Amendments.

Thompson did not object to the challenged instruction at trial.

Therefore, plain error is the appropriate standard of review.

United States v. Maxton, 940 F.2d 103, 105 (4th Cir. 1991).

          Thompson relies on cases from other circuits to support

his position that possession of cocaine under § 844(a) is not a


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lesser included offense of possession with intent to distribute

cocaine base under § 841(a).      These cases hold that the third

sentence in § 844(a) creates a separate crime for possession of

cocaine base that requires proof of drug type and quantity as

essential elements, and therefore the offense cannot be considered

a lesser included crime of possession with intent to distribute,

which does not require proof of those elements.    United States v.

Deisch, 20 F.3d 139, 144 (5th Cir. 1994); United States v. Sharp,

12 F.3d 605, 606 (6th Cir. 1993); United States v. Michael, 10 F.3d

838, 839 (D.C. Cir. 1993); United States v. Puryear, 940 F.2d 602,

603-04 (10th Cir. 1991).     However, other circuits have taken the

opposite position.    United States v. Butler, 74 F.3d 916, 922-24

(9th Cir. 1996); United States v. Smith, 34 F.3d 514, 519-20 (7th

Cir. 1994); United States v. Monk, 15 F.3d 25, 27 (2d Cir. 1994).*

          Under Schmuck v. United States, 489 U.S. 705, 716 (1989),

“the elements of the lesser offense are a subset of the elements of

the charged offense.”    We find that both § 841 and § 844 describe

the same offense, except § 844(a) does not have the intent to

distribute element.     Therefore, because the elements of § 844(a)



     *
       This Court has held in other contexts that “possession of
cocaine base is a lesser included offense of possession with intent
to distribute cocaine base.” United States v. Jones, 204 F.3d 541,
544 (4th Cir. 2000) (two offenses—possession and possession with
intent to distribute—regarding same 3.4 grams of cocaine must be
merged for sentencing purposes); United States v. Baker, 985 F.2d
1248, 1259 (4th Cir. 1993) (conspiracy to possess cocaine is a
lesser-included offense of conspiracy to distribute cocaine).

                                - 5 -
are a subset of § 841, we find the district court did not commit

plain error.

             Thompson next argues that he did not receive adequate

notice of the charge of which he was convicted.             A defendant must

receive “fair notice of the elements of the offense with which he

is charged and sufficient detail so that he can plead an acquittal

or a guilty verdict as a bar to a subsequent prosecution for the

same offense.”     United States v. Jackson, 327 F.3d 273, 290 (4th

Cir. 2003).

             Here, the grand jury indicted Thompson for possession

with intent to distribute “five grams or more of a mixture and

substance containing . . . cocaine base.”             We find the indictment

set forth all the elements of § 844(a), and therefore Thompson had

notice of the offense for which he was convicted.                 The claim is

without merit.

             Thompson    finally    argues   his    conviction    of   a   lesser

included offense violates the Double Jeopardy Clause of the Fifth

Amendment,    which     prohibits    multiple      punishment    for   the   same

offense.   United States v. Johnson, 32 F.3d 82, 84 (4th Cir. 1994).

Because Thompson was punished for only one offense, the Double

Jeopardy Clause is inapplicable, and the argument is without merit.

             Accordingly, we affirm the district court’s judgment. We

dispense with oral argument because the facts and legal contentions




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are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                      AFFIRMED




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