UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5764

STAFFORD MARK COX, a/k/a Mark,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CR-95-143-A)

Submitted: June 20, 1996

Decided: July 17, 1996

Before HALL, WILKINS, and HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

E. Blair Brown, BROWN & STAMBAUGH, Alexandria, Virginia,

for Appellant. Helen F. Fahey, United States Attorney, Michael E.

Rich, Assistant United States Attorney, Alexandria, Virginia, for

Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Stafford Mark Cox appeals the 168-month sentence he received

after his guilty plea to four counts of crack cocaine distribution, 21

U.S.C.A. § 841 (West 1981 & Supp. 1996). Cox went to trial on three

additional charges: attempted distribution of 62 grams of crack on

October 26, 1994 (Count 5), assault on a federal officer (Count 6),

and using and carrying a firearm during a drug trafficking offense

(Count 7). The district court granted Cox's motion for acquittal on all

three counts. Nonetheless, Cox contends on appeal that the district

court dismissed Count 5 on the government's motion rather than

granting his acquittal motion, and erred in doing so. He also argues

that the court clearly erred in considering the 62 grams of crack

charged in Count 5 as relevant conduct in sentencing him. United

States Sentencing Commission, Guidelines Manual , §§ 1B1.3, 2D1.1

(Nov. 1994). We affirm.

Cox sold crack to an undercover officer on four occasions. A fifth

sale was arranged at which Cox was to be arrested. Cox met the agent

at a gas station but, while the transaction was in progress, he noticed

the arrest team moving in and he escaped, ramming the agents' van

and another car in the process. A firearm was found that night near

the gas station along the route Cox took. A plastic bag containing 62

grams of crack (the amount negotiated) was found in the same area

the next day.

The district court found that the evidence was insufficient to sustain convictions for assault or for using and carrying a firearm. The

record discloses that the district court granted the defense motion to

acquit on Count 5 as well, although it found that the government had

produced enough evidence to submit the charge of attempted distribution to the jury. Because Cox had already pled guilty to four counts

of distribution, the government agreed that there was little practical

reason to proceed on the additional count of attempted distribution

and did not oppose the motion to acquit.

Cox challenges the district court's finding that the government

made a prima facie case of attempted distribution. The question is of

 2
no import because the court granted the motion to acquit. Cox also

contends that the negotiated 62 grams of crack should not have been

considered as relevant conduct because the attempted distribution was

not shown by a preponderance of the evidence. The 62 grams was

properly considered as relevant conduct simply because there was

unrefuted evidence that Cox agreed to sell that amount to the agent.

USSG § 2D1.1, comment. (n.12).

We therefore affirm the sentence imposed by the district court. 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

 3