UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4278

JAMES LAMONT PITT,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Rebecca B. Smith, District Judge.

(CR-94-33)

Submitted: October 28, 1997

Decided: November 24, 1997

Before WILKINS, HAMILTON, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Keith L. Kimball, SYKES, CARNES, BOURDON & AHERN, P.C.,

Virginia Beach, Virginia, for Appellant. Helen F. Fahey, United

States Attorney, Laura M. Everhart, Assistant United States Attorney,

Norfolk, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Lamont Pitt appeals his sentence of 188 months incarceration for

distribution of cocaine base and possession with intent to distribute

cocaine base.1 Pitt, who was resentenced after his firearm conviction2

was vacated pursuant to Bailey v. United States , ___ U.S. ___, 64

U.S.L.W. 4039 (U.S. Dec. 6, 1995) (No. 94-7448, 94-7492), now

contends that he should be sentenced in accordance with the powder

cocaine sentencing guidelines rather than the more severe "crack"

cocaine guidelines. Finding Pitt's claim without merit, we affirm his

sentence.

Relying on United States v. James, 78 F.3d 851 (3d Cir. 1996),

cert. denied, ___ U.S. ___, 65 U.S.L.W. 3259 (U.S. Oct. 7, 1996)

(No. 95-9224), Pitt argues that the government failed to prove that he

possessed crack, as opposed to another form of cocaine base. While

Pitt did not contend at sentencing that the substance he possessed was

anything other than crack cocaine, he now argues that he should be

resentenced under the powder cocaine guidelines because he was convicted of distributing cocaine base and possession with intent to distribute cocaine base, and the government failed to prove that the

specific type of "cocaine base" at issue was indeed "crack."3

Pitt's reliance upon James is misplaced. James involved an indictment that charged possession of "a detectable amount of cocaine

base" and an ambiguous plea colloquy.4 Furthermore, the issue was

hotly litigated at sentencing, and the district court eschewed any specific factual findings, holding only that "cocaine base means crack for

purposes of the guidelines."5 Faced with the ambiguities in the record

and the lack of factual findings by the district court, the Third Circuit

_________________________________________________________________

1 See 21 U.S.C. § 841(a)(1) (1994).

2 See 18 U.S.C. § 924(c) (West Supp. 1997).

3 U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(c)(D) (1995) (specifically noting that "crack" is but one form of"cocaine base").

4 See James, 78 F.3d at 855-56.

5 Id. at 856-57.

 2
found that the government had failed to prove that the substance at

issue was crack cocaine. The court then remanded for resentencing.6

However, in this case, unlike James, there is no ambiguity. Pitt was

convicted on indictment charging him with distribution of "Cocaine

Base, Commonly Known as `Crack.'" Furthermore, while Pitt

objected to the quantity of drugs used to calculate his sentence in the

presentence report, he did not object to the characterization of the

drugs as crack cocaine or to a sentence under the crack guidelines. In

so doing, Pitt demonstrated his understanding that the term "cocaine

base" in the presentence report referred to "crack," and thereby

waived his present claim by not raising it at sentencing. Finally, the

guidelines specifically state that the Sentencing Commission uses the

term "cocaine base" to refer to "crack."7 Pitt's suppression hearing,

trial, presentence report, and sentencing hearing are replete with references to cocaine base, and it is abundantly clear that all parties understood the term "cocaine base" to mean "crack." In the absence of

evidence that the substance was another form of cocaine base and

absent any contemporaneous objection by Pitt, his argument must fail.

In sum, there was sufficient evidence in the record to support, by

a preponderance of the evidence, that the substance at issue was crack

cocaine. Significantly, there was no evidence to the contrary, and no

objection by Pitt to the computation of his sentence under the crack

guidelines. Furthermore, because we have not adopted the holding of

James, the district court did not commit plain error by sentencing Pitt

under the crack cocaine guidelines.8

Accordingly, we affirm Pitt's sentences. 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

_________________________________________________________________

6 Id. at 858.

7 USSG § 2D1.1(c)(D).

8 See United States v. Olano, 507 U.S. 725, 734 (1993) (claim raised

for the first time on appeal cannot justify reversal unless the error is

"clear under current law").

 3