UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                    No. 99-4743

LESLIE MORRIS,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-99-26)

Submitted: February 29, 2000

Decided: March 14, 2000

Before WILLIAMS and MOTZ, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

James R. Fox, JORY & SMITH, Elkins, West Virginia, for Appellant.
Melvin W. Kahle, Jr., United States Attorney, Robert H. McWilliams,
Jr., Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Leslie Morris appeals his criminal sentence for use of a communi-
cation facility in the distribution of cocaine, and conspiracy to do the
same in violation of 21 U.S.C.A. §§ 843(b),(d); 846 (West 1994 &
Supp. 1999). We affirm.

Morris first asserts that the district court improperly counted a 1996
conviction for battery of a police officer in calculating his criminal
history score, arguing that the state offense was similar to disorderly
conduct, disturbing the peace, hindering or failing to obey a police
officer, or resisting arrest. As such, he contends that it falls under the
list of offenses specified in U.S. Sentencing Guidelines Manual
§ 4A1.2(c)(1) (1998), and should not have been attributed a criminal
history point absent circumstances not present in this case. Our
review of the relevant offenses under the "similarity" test espoused by
this Court in United States v. Harris, 128 F.3d 850, 854-55 (4th Cir.
1997), leads us to conclude that the conviction in question was prop-
erly assigned one criminal history point under USSG§ 4A1.1(c).

Next, Morris contends that there was insufficient evidence to find
that he possessed a firearm in conjunction with the offense, and that
his brother and co-defendant's possession of a firearm cannot be attri-
buted to him for purposes of USSG § 2D1.1. We have reviewed the
briefs and joint appendix in this case, and agree with the district
court's determination that this enhancement was properly applied.
Accordingly, we affirm Morris' sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

                     2
