Rehearing granted by order filed 10/16/00UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 99-4344 RICHARD LEE TONEY, Defendant-Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Chief District Judge. (CR-96-66-MU) Submitted: June 13, 2000 Decided: September 13, 2000 Before WILKINS and NIEMEYER, Circuit Judges, and HAMILTON, Senior Circuit Judge.

_________________________________________________________________ Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________ COUNSEL Marshall A. Swann, Charlotte, North Carolina, for Appellant. MarkT. Calloway, United States Attorney, Gretchen C.F. Shappert, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.

_________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).OPINION PER CURIAM:Richard Lee Toney pled guilty to one count of conspiracy to possess with intent to distribute and distribute cocaine and cocaine basewithin 1000 feet of a school, 21 U.S.C. §§ 846, 860 (1994), and possession of cocaine with intent to distribute and aid and abet same, 21 U.S.C.A. § 841(a)(1) (West 1999), 18 U.S.C.§ 2 (1994). His attorney has filed a brief in accordance with Anders v. California , 386 U.S. 738 (1967), stating that there are no meritorious grounds for appeal but asserting that the district court erred when it denied Toney a reduction in the base offense level for having accepted res ponsibility. Tony was notified of his right to file a pro se supplemental brief but has not done so. We v acate the judgment of conviction and remand to the district court for the purpose of correcting the written judgment to conform to the oral sentence. We find that the district court did not err by denying Toney a reduction in the base offense level for having accepted res ponsibility. Toney's act of absconding after he pled guilty warranted the district court's decision. See United States v. Curtis , 934 F.2d 553, 557 (4th Cir. 1991). At sentencing, based on Toney's offense level and criminal history category, the sentencing guidelines' range was 135 months' to 168 months' imprisonment. The transcript of the sentencing proceedings reflects that the district court imposed a sentence of 130 months' imprisonment. The written judgment, on the other hand, states that Toney was sentenced to 135 months' imprisonment."[T]he sentences to be served . . . are those pronounced in the defendant's presence in open court and not those set out in the written judgments of the court." Rakes v. United States , 309 F.2d 686, 687 (4th Cir. 1962). The remedy is to vacate the judgment and remand to the district court for the purpose of correcting the written judgment to conform to the oral sentence. See id. at 688; see also United States v. Morse , 344 F.2d 27, 31 n.1 (4th Cir. 1965). Thus, the written judgment in the instant case should reflect the district court's oral pronouncement at sentencing.*

_________________________________________________________________ *We recognize that the transcript may contain a typographical error. If this is the case, the district court may re-enter a written judgment with a 135-month sentence.
2In accordance with the requirements of Anders , we have considered the entire record on appeal and find that there was no error in the pleaproceeding, nor do we find any error in the district court's determination as to Toney's offense level or criminal history category. Wevacate the district court's judgment and remand for the limited purpose of having the district court re-enter a written judgment conforming to the oral pronouncement at sentencing. We dispense with oralargument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
VACATED AND REMANDED 3