UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 97-4443

HOWARD DAVIS, Defendant-Appellant.

Appeal from the United States District Court for the District of South Carolina, at Anderson. Henry M. Herlong, Jr., District Judge. (CR-92-524)

Submitted: January 20, 1998

Decided: February 11, 1998

Before WILKINS and HAMILTON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William H. Ehlies, P.A., Greenville, South Carolina, for Appellant. J. Rene Josey, United States Attorney, David C. Stephens, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Howard Davis pled guilty in 1993 to conspiring to distribute and to possess with intent to distribute crack cocaine in violation of

(1994), and to using and carrying a firearm during a drug trafficking offense in violation of 18 U.S.C.A.§ 924(c) (West Supp. 1994). On appeal,* Davis contended, among other things, that in light of Bailey v. United States, #6D 6D6D# U.S. ___,

(U.S. Dec. 6, 1995) (Nos. 94-7448, 94-7492), there was not a suffi- cient factual basis to support his guilty plea on the § 924(c) count. We affirmed Davis' conspiracy conviction and sentence but remanded the § 924(c) conviction and sentence to the district court for a determina- tion of whether the conviction should stand in light of Bailey and for further proceedings as appropriate. See United States v. Davis, No. 95-5525 (4th Cir. Oct. 25, 1996) (unpublished). The district court vacated the § 924(c) conviction and resentenced Davis, enhancing his sentence for the drug conviction under U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(b)(1) (1995).

Davis appeals his 235-month prison sentence, claiming that the dis- trict court exceeded the scope of our remand and therefore did not have jurisdiction to resentence him on the related conspiracy convic- tion following his successful attack on direct appeal of his § 924(c) conviction under Bailey. We have decided this issue to the contrary. See United States v. Hawthorne,

(4th Cir. 1996).

Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the mate- rial before the court and argument would not aid the decisional pro- cess.

AFFIRMED _________________________________________________________________ *We dismissed Davis' first appeal for lack of jurisdiction because the notice of appeal was not timely filed. Davis then filed a motion under

(1994), claiming that his counsel failed to timely file the notice of appeal after being asked to do so. The district court granted Davis' motion, vacated the judgment of conviction, and reinstated it to afford Davis an opportunity to appeal.

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