UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4151

KELVIN ALVON BURSTON,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

W. Earl Britt, District Judge.

(CR-94-33-BR)

Submitted: September 2, 1997

Decided: October 1, 1997

Before NIEMEYER and LUTTIG, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William Arthur Webb, Federal Public Defender, Gordon Widenhouse,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. Janice McKenzie Cole, United States Attorney, Anne M.

Hayes, Assistant United States Attorney, Banumathi Rangarajan,

Assistant United States Attorney, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:

Appellant Kelvin Alvon Burston was initially convicted pursuant

to his guilty pleas of one count each of possession of crack cocaine

with intent to distribute and using or carrying a firearm during and in

relation to a drug trafficking offense. After the Supreme Court's decision in Bailey,1 Burston filed a § 22552 motion attacking his § 924(c)3

conviction. The district court granted the motion and ordered a resentencing hearing over Burston's objection. On resentencing, the district

court enhanced Burston's sentence for the drug conviction pursuant

to USSG § 2D1.1(b)(1).4 On appeal, Burston challenges the district

court's jurisdiction to resentence him and the court's application of

the sentencing enhancement. Finding no reversible error, we affirm.

Burston asserts that the district court improperly resentenced him

on his drug conviction following his successful collateral attack of his

firearm conviction under Bailey. We decided this issue to the contrary

in United States v. Hillary, 106 F.3d 1170 (4th Cir. 1997) (holding

that the district court had jurisdiction to resentence a defendant on a

surviving drug conviction after the defendant was granted collateral

relief from his § 924(c) conviction based on Bailey).5 Burston also

attacks the constitutionality of USSG § 2D1.1. We have found

§ 2D1.1 constitutional when properly applied. See United States v.

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1 Bailey v. United States, ___ U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec.

6, 1995) (Nos. 94-7448, 94-7492).

2 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997).

3 18 U.S.C. § 924(c) (1994).

4 U.S. Sentencing Guidelines Manual (1996).

5 Hillary applied this court's decision in United States v. Hawthorne,

94 F.3d 118, 122 (4th Cir. 1996) (holding that resentencing was appropriate when successful Bailey claim was raised on direct appeal), to similar collateral attacks.

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Bowman, 926 F.2d 380, 381-82 (4th Cir. 1991) (holding that application of § 2D1.1 does not violate Due Process Clause). Finally, we find

that the evidence was sufficient to establish a connection between the

firearm found in the apartment and Burston's drug activities.6 See

United States v. Hunter, 19 F.3d 895, 896 (4th Cir. 1994).

We therefore affirm the district court's findings and sentence. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the material before the court and argument would not aid the decisional process.

AFFIRMED

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6 A confidential informant notified police that two men were delivering

crack cocaine to a dealer known by the initials"KB." Police observed the

two men enter a third floor apartment. After the men left, police executed

a search warrant. Burston fled by jumping out a window, but he was

eventually apprehended. The two men were also apprehended and found

carrying over $3400 in cash. Over 150 grams of crack cocaine was discovered in the apartment, some of it within arms-reach of a .32 cal. handgun. Burston admitted to police that he was a drug dealer, that the drugs

found in the apartment were his, and that the two men delivered crack

cocaine to him on several other occasions.

 3