UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4921

RICHARD EDWARD GUNN,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Danville.

Jackson L. Kiser, Senior District Judge.

(CR-97-70002)

Submitted: June 2, 1998

Decided: June 19, 1998

Before HAMILTON and MICHAEL, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Rhonda L. Overstreet, LUMSDEN, OVERSTREET & HANSEN,

Roanoke, Virginia, for Appellant. Robert P. Crouch, Jr., United States

Attorney, Ruth E. Plagenhoef, Assistant United States Attorney, Colleen M. Shook, Third Year Law Student, Roanoke, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:

Richard Gunn appeals his conviction for aiding and abetting the

distribution of crack cocaine in violation of 18 U.S.C. § 2 (1994), and

21 U.S.C. § 841(a)(1) (1994). Finding no merit to his claims, we

affirm.

On September 5, 1996, Larry Cunningham, a confidential informant working for local law enforcement officials, was standing at a

telephone booth making preparations to make a controlled purchase

of cocaine when Alphonso Stephens approached him. At Stephens'

prompting, Cunningham revealed that he was looking to buy seven

grams of cocaine. Stephens responded that he knew someone who

could provide the cocaine, and then called Gunn to get a price for

Cunningham. Stephens quoted Cunningham a price of $350 and

arranged to have Gunn meet him and Cunningham at a different location in thirty minutes. Cunningham and Stephens then each drove to

the arranged meeting place and waited for Gunn. Gunn eventually

drove up accompanied by another person. Stephens got into Gunn's

car, obtained the cocaine, walked back to Cunningham and gave him

the cocaine, and then returned to the car and gave the $350 to Gunn.

Based on these events Gunn was convicted of aiding and abetting the

distribution of cocaine and was sentenced to 160 months imprisonment.

Gunn's first claim is that there was insufficient evidence to support

his conviction. To sustain a conviction, this court must find that the

evidence, when viewed in a light most favorable to the government,

was sufficient for a rational trier of fact to have found the essential

elements of the crime beyond a reasonable doubt. United States v.

Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993). Circumstantial as well as

direct evidence is considered, and the government is given the benefit

of all reasonable inferences from the facts proven to those sought to

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be established. United States v. Tresvant, 677 F.2d 1018, 1021 (4th

Cir. 1982).

Gunn's assertion that this court should reverse his conviction

because at sentencing the district court allegedly cast doubt on the

veracity of Stephens' testimony is unpersuasive. At trial Cunningham

identified Gunn as the person he saw driving the car that Stephens got

into to get the cocaine. Stephens testified that he sold cocaine for

Gunn on a regular basis, and that he arranged and delivered cocaine

to Cunningham that he obtained from Gunn. We find that this testimony was sufficient evidence from which a reasonable jury could

have found Gunn guilty of aiding and abetting the distribution of

cocaine.

Gunn next claims that the district court erred in sentencing him to

the upper end of the guideline range. Gunn alleges that the district

court impermissibly considered a pending state drug charge when

imposing sentence in violation of United States Sentencing Guidelines

Manual ("U.S.S.G.") § 1B1.4 (1996). Specifically, Gunn contends

that because the court sustained his objection to including 22.81

grams of cocaine stemming from a pending state distribution charge

in calculating the amount of drugs for sentencing purposes, the court

should not have considered this charge when imposing sentence. He

further claims that the court failed to sufficiently articulate its reasons

for sentencing him at the upper end of the guideline range.

This court reviews legal issues involving the application of the

Guidelines de novo. See United States v. Daughtrey, 874 F.2d 213,

217 (4th Cir. 1989). Title 18 U.S.C. § 3661 provides that "[n]o limitation shall be placed on the information concerning the background,

character, and conduct of a person convicted of an offense which a

court of the United States may receive and consider for the purpose

of imposing an appropriate sentence." This language is echoed by the

sentencing guidelines, which provide that "any information" may be

considered by the court when imposing sentence, and that "Congress

intended that no limitation would be placed on the information that

a court may consider in imposing an appropriate sentence." U.S.S.G.

§ 1B1.4 & comment. (backg'd.).

Gunn's assertion that the district court can not consider a pending

charge when deciding where within the applicable guideline range to

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impose sentence contradicts the plain language of both § 3661 and the

sentencing guidelines. The district court sentenced Gunn to the upper

end of the guideline range based on his extensive criminal history in

full accordance with § 3661 and § 1B1.4. Finally, the record belies

Gunn's claim that the district court failed to specify its reasons for

imposing a 160-month sentence.

Accordingly, we affirm Gunn's conviction. 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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