UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 97-4588

GEORGE MICHAEL MATHENY, a/k/a

Rocco,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, Chief District Judge.

(CR-97-27)

Submitted: June 9, 1998

Decided: June 30, 1998

Before WIDENER and WILLIAMS, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Karyn M. Schmidt, MEYER, DARRAGH, BUCKLER, BEBENEK

& ECK, Charleston, West Virginia, for Appellant. Rebecca A. Betts,

United States Attorney, Miller A. Bushong, III, Assistant United

States Attorney, Charleston, West Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

George Michael Matheny appeals the 98-month sentence he

received after he pled guilty to aiding and abetting the possession of

methamphetamine with intent to distribute, 21 U.S.C.A. § 841 (West

1981 & Supp. 1998), 18 U.S.C. § 2 (1994), and possession of a firearm during a drug trafficking crime, 18 U.S.C.A.§ 924(c) (West

Supp. 1998). He maintains that his prior sentence of a fine and costs

for brandishing a deadly weapon should have been excluded from his

criminal history score under U. S. Sentencing Guidelines Manual

§ 4A1.2(c) (1995). We find that his criminal history was correctly calculated and affirm.

Guideline section 4A1.2(c)(1)-(2) excludes from the criminal history calculation certain minor offenses such as hitchhiking. Other

specified offenses are excluded if the sentence imposed was less than

one year probation or thirty days imprisonment and it is not similar

to the instant offense. A prior sentence for an offense which is similar

to a listed offense in either category may also be excluded.

As calculated by the probation officer, Matheny had thirteen criminal history points, which placed him in category VI. Elimination of

the one disputed criminal history point assigned for the brandishing

conviction would have moved Matheny into category V and reduced

his guideline range. Guideline section 4A1.2(c) does not list brandishing a weapon as an excludable offense, but Matheny argued that brandishing was similar to disorderly conduct or disturbing the peace,

offenses excludable from the criminal history calculation under USSG

§ 4A1.2(c)(1), and therefore should have been excluded. The district

court summarily overruled his objection. Matheny renews his argument on appeal.

In United States v. Harris, 128 F.3d 850, 854-55 (4th Cir. 1997),

this court expressed approval of an "elements" test for determining

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whether offenses are "similar," and rejected a"multi-factor" test.

Under West Virginia law, the elements of brandishing a weapon are

that a person (1) is armed, (2) with a firearm or deadly weapon, and

(3) carries, brandishes, or uses the weapon, (4) in a manner to cause

or threaten a breach of the peace. W. Va. Code § 61-7-11 (1997). The

elements of disorderly conduct or disturbing the peace are that a person (1) in a specified common area, (2) disturbs the peace of others,

(3) by violent, profane, indecent, or boisterous conduct or language,

or by unreasonably loud noise intending to cause annoyance or alarm

to another, and (4) persists in the conduct after being told to stop by

a law enforcement officer. W. Va. Code § 61-7-11a (1997). We find

that the elements of the two offenses are not similar because the

offense of brandishing requires the presence of a firearm or other

deadly weapon while the offense of disorderly conduct or disturbing

the peace does not. Consequently, we find that the district court correctly included the sentence for brandishing in Matheny's criminal

history calculation.

The sentence is therefore affirmed. We dispense with oral argument because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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