UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4542

ANTHONY LEWIS SWANN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-97-17)

Submitted: June 9, 1998

Decided: June 26, 1998

Before HAMILTON and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, David Frohlich, Special Assistant
United States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Anthony Lewis Swann pled guilty to possession of marijuana with
intent to distribute, see 21 U.S.C.A. § 841 (West 1981 & Supp. 1998),
after he was caught trying to smuggle 4.9 grams of marijuana into
Lorton Reformatory in northern Virginia. Swann had two prior felony
drug convictions and qualified as a career offender. See U.S. Sentenc-
ing Guidelines Manual § 4B1.1 (1995). Swann's guideline range was
37-46 months. He received a sentence of thirty-seven months impris-
onment. Swann asserts on appeal that the district court should have
sentenced him to no more than 36 months under 21 U.S.C.A. § 844
(West Supp. 1998) (Simple Possession) because his offense involved
the distribution of a small amount of marijuana for no remuneration.
See 21 U.S.C.A. § 841(b)(4). We affirm.

Swann claimed that he intended to give the marijuana to his cousin,
an inmate at Lorton. Under § 841(b)(1)(D), a person convicted of an
offense involving less than fifty kilograms of marijuana is subject to
a sentence of no more than five years imprisonment, except as pro-
vided in paragraphs (4) and (5) of the same subsection. Para-
graph (4) provides that any person who violates§ 841(a) "by
distributing a small amount of marijuana for no remuneration shall be
treated as provided in section 844 of this title and section 3607 of
Title 18." 21 U.S.C.A. § 841(b)(4). Section 844 provides for a maxi-
mum term of thirty-six months when the defendant has two prior drug
convictions. Swann argued at sentencing that his offense involved dis-
tribution of a small amount of marijuana and, therefore, he should be
sentenced to no more than thirty-six months imprisonment. However,
the district court decided that 4.9 grams of marijuana was not a small
amount in a prison setting. Swann appeals, alleging that 4.9 grams of
marijuana is a small amount, even in a prison, and that, consequently,
the statutory maximum sentence was thirty-six months.*
_________________________________________________________________
*Because he had two prior drug convictions, Swan is ineligible for
treatment under 18 U.S.C. § 3607 (1994), which allows district courts to
impose pre-judgment probation on first-time drug offenders, and for
treatment under the portions of § 844 which provide a maximum one-
year term of imprisonment for first-time drug offenders and a maximum
two-year term of imprisonment for drug offenders with one prior drug
conviction.

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Neither § 841(b)(4) nor the legislative history of the Controlled
Substance Act gives any definition of "small amount." Thus, "Con-
gress left `small amount' open for the courts to decide, indicating [by
its failure to specify a particular weight] that the determination should
not be based purely on weight." United States v. Damerville, 

, 259 (7th Cir. 1994). We review the district court's factual deter-
mination under the clearly erroneous standard. See United States v.
McDonald, 

, 255 (4th Cir. 1995). Here, we cannot say that
the district court clearly erred.

The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

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