UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4689

RAY ALLEN SPARKS,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of North Carolina, at Statesville.

Richard L. Voorhees, Chief District Judge.

(CR-95-26-V)

Submitted: September 23, 1997

Decided: November 10, 1997

Before WILLIAMS and MICHAEL, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

John E. Hall, Bradley J. Cameron, Wilkesboro, North Carolina, for

Appellant. Mark T. Calloway, United States Attorney, Kenneth D.

Bell, First Assistant United States Attorney, Charlotte, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

Ray Allen Sparks appeals the 135-month sentence he received after

he pled guilty to conspiring with Rex Love and Charlie Moore to possess with intent to distribute and distribute marijuana from 1991 until

all three were arrested in January 1995. See 21 U.S.C.A. § 846 (West

Supp. 1997). Sparks contends that the district court clearly erred in

finding that he was Moore's manager or supervisor on the basis of

hearsay information in the presentence report. See U.S. Sentencing

Guidelines Manual § 3B1.1(c) (1995). He further argues that the court

erred in determining his criminal history category. We affirm in part,

vacate in part, and remand for further proceedings.

Sparks, Love, and Moore were part of a larger conspiracy which

purchased large amounts of marijuana from Mexican suppliers in

Texas and Arizona and transported it to North Carolina. Love was

head of the Wilkes County organization. Sparks assisted Love. He

recruited Moore to unload marijuana and paid him for his help with

four loads during 1991 and 1992. Sparks also kept records of distributors in Wilkes County and the amounts of marijuana they received.

After hearing testimony concerning Sparks' role in the offense, the

district court found that he was a manager or supervisor. We cannot

find that the district court clearly erred in making this determination.

Sparks had three criminal history points, all resulting from a 1989

conviction for assault. He received one point for his sentence of five

years unsupervised probation and two points for committing the

instant offense while under a criminal justice sentence. See U.S.S.G.

§ 4A1.1(c)-(d). At the sentencing hearing, he requested a downward

departure on the ground that his criminal history overstated his past

criminal conduct, see U.S.S.G. § 4A1.3, p.s., but the district court

declined to depart. After he was sentenced, Sparks filed a Motion for

Appropriate Relief in the district court of Wilkes County, asking that

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his 1989 conviction and sentence for assault be vacated and that he

be granted a new trial on the ground that his guilty plea was involuntary. The motion was granted and a new trial was ordered. On appeal,

Sparks asserts that his criminal history was wrongly calculated in the

first place and requests a remand for further proceedings now that the

assault conviction has been vacated.

We find that the district court correctly calculated Sparks' criminal

history at the sentencing hearing. However, because the assault conviction has since been overturned, we remand to allow the district

court to reconsider his criminal history score. If the issue were not

resolved now, Sparks could raise it in a later motion under 28

U.S.C.A. § 2255 (West 1994 & Supp. 1997), see United States v.

Bacon, 94 F.3d 158, 161 n.3 (4th Cir. 1996), but we see no reason to

require Sparks to initiate a new proceeding.

We therefore affirm the district court's determination of Sparks'

role in the offense but vacate the sentence and remand for reconsideration of his criminal history. 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 IN PART, VACATED,

IN PART, AND REMANDED

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