UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4760

STEPHEN C. THOMPSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Beckley.

Elizabeth V. Hallanan, Senior District Judge.

(CR-95-69)

Submitted: February 10, 1998

Decided: February 26, 1998

Before MOTZ, Circuit Judge, and HALL and

PHILLIPS, Senior Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Cheryl J. Sturm, Westtown, Pennsylvania, for Appellant. Rebecca A.

Betts, United States Attorney, Michael L. Keller, Assistant United

States Attorney, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Appellant Stephen Thompson pled guilty to distribution of cocaine

base.1 After his direct appeal was dismissed for failure to file a timely

notice of appeal, Thompson moved for habeas corpus relief under 28

U.S.C.A. § 2255 (West 1994 & Supp. 1997) on various grounds,

including ineffective assistance of counsel. Acting on that motion, the

district court vacated and reinstated Thompson's sentence, thus allowing him another opportunity to perfect a direct appeal. Finding no

error in the disposition of Thompson's § 2255 motion or the underlying criminal proceedings, we affirm.

In May 1995, a federal grand jury indicted Thompson on numerous

drug charges.2 After initially pleading not guilty, Thompson entered

into a plea agreement with the government. He pled guilty in September to one count of distribution of cocaine base, 3 and was sentenced

to 210 months imprisonment. Thompson's notice of direct appeal was

untimely filed, and this court granted the government's motion to dismiss the appeal as untimely.4

In April 1997, Thompson moved for habeas corpus relief under

§ 2255, claiming among other things that his counsel had been ineffective by failing to file a timely notice of appeal. The district court,

following the procedure endorsed by this circuit in United States v.

Peak, 992 F.2d 39 (4th Cir. 1993), granted Thompson relief by vacating and immediately reimposing his judgment of conviction, thus

allowing him another opportunity to appeal, but denied his other

claims. Thompson then timely appealed from the judgment in his

habeas action and from the newly reinstated judgment in the underlying criminal proceedings.

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1 See 21 U.S.C. § 841(a)(1) (1994).

2 See 21 U.S.C. §§ 841(a)(1), 846 (1994).

3 Id.

4 See United States v. Thompson , No. 96-4180 (4th Cir. July 12, 1991)

(unpublished).

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First, Thompson contends that the district court erred by merely

reimposing his original sentence in order to restore his appellate rights

instead of ordering a new presentence report and conducting a new

sentencing hearing. This claim is without merit because the district

court's action was totally consistent with this court's decision in Peak.5

Second, Thompson asserts that the district court abused its discretion by failing to conduct an evidentiary hearing on his claims that

counsel was ineffective at sentencing and that the government

breached the plea agreement. Our review of the record discloses the

district court did not abuse its discretion by failing to hold an evidentiary hearing.6 The record demonstrates that Thompson understood his

rights and consented to the withdrawal of objections to the presentence report. Further, bald allegations of a verbal promise by the government are insufficient to mandate a hearing.

Third, Thompson claims that the plea agreement's use of "cocaine

base" instead of "cocaine base aka `crack,'" as in the indictment, led

him to believe that he was pleading guilty to a lessor offense than was

charged in the indictment. Thompson's claim is without merit. Contrary to Thompson's assertions, the sentencing guidelines state that

cocaine base means crack,7 and the clear precedent of this circuit is

that the terms cocaine base and crack are synonymous.8 Moreover,

Thompson's sentence of 210 months does not exceed the twenty-year

maximum sentence contained in the plea agreement; thus, Thompson

received the benefit of his bargain.

Finally, Thompson contends that his plea agreement was premised

upon a verbal promise by the government that it would move under

FED. R. CRIM. P. 35 for a reduction in sentence. Thompson's claim is

without merit because the government only offered the possibility of

moving for a reduction in sentence. Because the government retained

discretion to file a Rule 35 motion and Thompson failed to allege an

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5 See Peak, 992 F.2d at 42.

6 See Raines v. United States, 423 F.2d 526, 529-30 (4th Cir. 1970).

7 See U.S. SENTENCING GUIDELINES MANUAL§ 2D1.1(c), note (D) (1997).

8 See United States v. Fisher, 58 F.3d 96, 98-99 (4th Cir. 1995).

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unconstitutional motive for the failure to file, Thompson's claim is

without merit.9

For the reasons stated herein, we affirm the judgments of the district court in Thompson's habeas action and in the underlying criminal action proceedings. 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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9 See United States v. Wallace, 22 F.3d 84, 87 (4th Cir. 1994).

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