UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 98-4175

KEDRON KITCHENS,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
Robert Earl Maxwell, Senior District Judge.
(CR-96-19)

Submitted: August 18, 1998

Decided: September 3, 1998

Before MURNAGHAN and MICHAEL, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James R. Fox, JORY & SMITH, L.C., Elkins, West Virginia, for
Appellant. William D. Wilmoth, United States Attorney, Paul T.
Camilletti, Assistant United States Attorney, Wheeling, West Vir-
ginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Kedron Kitchens appeals from his sentence imposed after entering
a plea of guilty to possession with intent to distribute crack cocaine,
in violation of 21 U.S.C. § 841(a)(1) (1994). We affirm.

Kitchens was involved in a drug distribution network in which
numerous people, including Kitchens' brother Koffi Kitchens, sold
crack cocaine for Kitchens. At least one of Kitchens' sellers also testi-
fied to cooking cocaine into crack cocaine for Kitchens. Kitchens was
stopped by West Virginia State Police on November 18, 1994, and
officers found 160 grams of crack cocaine in his van.

Initially, the Government filed an information of a prior felony
conviction under 21 U.S.C. § 851 (1994), which would result in a
mandatory minimum sentence of twenty years under 21 U.S.C.
§ 841(b) (1994). The Government agreed to withdraw the information
after Kitchens pled guilty, thus resulting in a mandatory minimum of
only ten years under § 841(b). Kitchens apparently entered into the
plea agreement with the expectation that he would cooperate with the
Government by providing information on other drug activities and
doing undercover work, thus resulting in a motion for downward
departure for substantial assistance by the Government under U.S.
Sentencing Guidelines Manual § 5K1.1 (1997). However, subsequent
to pleading guilty, Kitchens was incarcerated in North Carolina thus
foreclosing his ability to render substantial assistance to the Govern-
ment.

Kitchens moved to withdraw his guilty plea on the ground that the
Government breached the plea agreement when Kitchens was not able
to provide substantial assistance, which may have resulted in a motion
for downward departure. Kitchens also contended that his plea was
not knowingly and voluntarily entered. The district court denied the
motion at the sentencing hearing.

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The presentence investigation report (PSR) recommended a three-
level enhancement for Kitchens' role in the offense under USSG
§ 3B1.1(b). The PSR also recommended that, in light of Kitchens'
prior convictions for a crime of violence and a drug felony, he be
assigned career offender status under USSG § 4B1.1. The sentencing
court applied the three-level role in the offense enhancement, and also
found that Kitchens was a career offender under§ 4B1.1, thus
increasing his criminal history category.

Kitchens appeals, contending that the sentencing court clearly erred
when it applied the three-level enhancement for role in the offense.
Kitchens also contends that he should have been permitted to with-
draw his guilty plea, on the grounds that the Government breached the
plea agreement by failing to recruit Kitchens to provide substantial
assistance; that the agreement was not knowingly and voluntarily
entered into because Kitchens did not realize he was pleading guilty
to possession with intent to distribute "crack" cocaine; and because
his prior convictions were used to assign him career offender status
under USSG § 4B1.1 after the Government withdrew its information
of his prior convictions.

The sentencing court did not clearly err by finding that Kitchens
was a manager or supervisor of criminal activity under USSG
§ 3B1.1, thus increasing his offense level by three levels. See United
States v. Withers, 100 F.3d 1142, 1147 (4th Cir. 1996), cert. denied,
___ U.S. ___, 66 U.S.L.W. 3631 (U.S. Mar. 17, 1997) (No. 96-7884).
Numerous people sold drugs for Kitchens, and he also acted as his
brother's main crack cocaine supplier. See USSG § 3B1.1(b); United
States v. Hyppolite, 65 F.3d 1151, 1159 (4th Cir. 1995).

Likewise, the district court did not abuse its discretion by denying
Kitchens' motion to withdraw his guilty plea. See United States v.
Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996). The Government did not
breach the plea agreement by not recruiting Kitchens to participate in
undercover activity, as the Government never promised that it would
do so or promised to move for a downward departure based on sub-
stantial assistance. Further, the indictment charged Kitchens with pos-
session with intent to distribute crack cocaine, the factual basis
established at the guilty plea hearing spoke in terms of crack cocaine,
and Kitchens acknowledged dealing in crack cocaine. Accordingly,

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Kitchens' assertion that his plea was not knowing and voluntary
because he did not realize he was pleading guilty to possession with
intent to distribute crack cocaine is unsupported. See United States v.
Moore, 931 F.2d 245, 248 (4th Cir. 1991). Finally, the Government
agreed to and did withdraw its information of Kitchens' prior convic-
tions under 21 U.S.C. § 851, thus resulting in only a ten year manda-
tory minimum under 21 U.S.C. § 841(b)(1). However, this statutory
proceeding is unrelated to the application of USSG§ 4B1.1. See
USSG § 4B1.1; United States v. Foster, 68 F.3d 86, 89 (4th Cir.
1995). Accordingly, Kitchens' argument that his plea was not know-
ing and voluntary due to his assignment of career offender status is
without merit. See Moore, 931 F.2d at 248.

We affirm Kitchens' sentence. We dispense with oral argument
because the facts and legal contentions are adequately set forth in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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