UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4200

FRANK WILLIS CROSSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

N. Carlton Tilley, Jr., District Judge.

(CR-97-220)

Submitted: November 30, 1998

Decided: December 21, 1998

Before NIEMEYER and HAMILTON, Circuit Judges, and

HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Louis C. Allen, III, Federal Public Defender, Gregory Davis, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney, Sandra J. Hairston,

Assistant United States Attorney, Greensboro, North Carolina, for

Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Frank Willis Crosson pled guilty to conspiracy to possess cocaine

powder with intent to manufacture crack and to distribute cocaine

base (crack), 21 U.S.C. § 846 (1994), and received a sentence of 262

months imprisonment. He challenges his sentence, alleging that the

district court erred in imposing a two-level enhancement for possession of firearms during the offense, see U.S. Sentencing Guidelines

Manual § 2D1.1(b)(1) (1997), or alternatively, erred in assigning one

criminal history point for a prior misdemeanor child abuse sentence

based on his possession of the same loaded firearms and ammunition

in his home. Crosson argues that the prior conviction was for conduct

which was part of the instant offense. See USSG § 4A1.2(a)(1). Finding no error, we affirm.

Around the beginning of 1996, Crosson and Anthony Maldonado

began obtaining cocaine powder in New York and transporting it to

Durham, North Carolina, where they cooked the powder into crack

and distributed it. On February 5, 1997, local authorities arrested

Crosson on drug charges. During a search of his apartment, police

discovered a loaded SKS rifle standing in the corner of the living

room. Another loaded assault rifle and a 9 mm pistol were lying on

top of separate entertainment centers, and a duffle bag containing

over 100 rounds of ammunition was in the middle of the room. Crosson's two-year-old son was walking around the room when the police

entered. The state drug charges were dismissed (apparently to allow

a federal investigation to continue), but Crosson was convicted of

misdemeanor child abuse. He received a suspended sentence of thirty

days imprisonment and twelve months probation.

In the next month or so, Crosson and Maldonado found a new

source for cocaine in Miami, Florida, and continued to bring substantial quantities of cocaine to North Carolina. In July 1997, Crosson

 2
was again arrested on state drug charges. Federal charges quickly followed. Crosson pled guilty to a conspiracy with Maldonado and others beginning in April 1997 and extending to September 1997.

After Crosson's guilty plea, the probation officer recommended

both an enhancement for possession of firearms during the offense

pursuant to USSG § 2D1.1(b)(1) and one criminal history point for

the misdemeanor child abuse sentence. See USSG § 4A1.1(c). Crosson objected that the enhancement and the criminal history point were

based on the same conduct. Under USSG § 4A1.2(a)(1), for purposes

of computing criminal history, a "prior sentence" is a sentence for

conduct that is not part of the instant offense. Application Note 1

explains that conduct that is part of the instant offense is conduct that

is relevant conduct under USSG § 1B1.3. However, the district court

found that the child abuse conviction was for distinct conduct which

was not taken into account by the enhancement for possession of firearms during the crack conspiracy.

On appeal as in the district court, Crosson relies on United States

v. McManus, 23 F.3d 878, 888 (4th Cir. 1994), in which we followed

United States v. Beddow, 957 F.2d 1330, 1338 (6th Cir. 1992), holding that "the appropriate inquiry [must be] whether the `prior sentence' and the present sentence involve conduct that is severable into

two distinct offenses. This is necessarily a fact-specific inquiry that

involves more than just a consideration of the elements of the two

offenses." (internal quotation omitted). Beddow, in turn, distinguished

the crime of carrying a concealed weapon from a related money laundering offense because each crime harmed different societal interests.

Here, the danger to a small child posed by the presence of loaded

weapons within his reach is distinct from the danger to society resulting from the distribution of unlawful controlled substances. The district court did not err in finding that the harm punished by the

sentence for misdemeanor child abuse was not accounted for in computing Crosson's offense level for the instant offense. Consequently,

we find that the district court did not err in making the enhancement

under USSG § 2D1.1(b)(1) and also assigning a criminal history point

for the prior child abuse sentence.

The sentence is therefore affirmed. We dispense with oral argument because the facts and legal contentions are adequately presented

 3
in the materials before the court and argument would not aid the decisional process.

AFFIRMED

 4