UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                            No. 99-4726
ELIZUR MORALES, a/k/a Reuben,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Charleston.
             Charles H. Haden II, Chief District Judge.
                            (CR-98-121)

                  Submitted: February 26, 2002

                      Decided: April 16, 2002

   Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.



Vacated and remanded by unpublished per curiam opinion.


                            COUNSEL

Brian A. Glasser, BAILEY & GLASSER, L.L.P., Charleston, West
Virginia, for Appellant. Kasey Warner, United States Attorney, Mon-
ica K. Schwartz, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. MORALES
                               OPINION

PER CURIAM:

   Elizur Morales appeals from his 108-month sentence for aiding and
abetting possession with intent to distribute cocaine, in violation of 21
U.S.C.A. § 841(a) (West 1999 & Supp. 2001) and 18 U.S.C.A. § 2
(West 2000), and one count of conspiracy to distribute and possess
with intent to distribute cocaine, in violation of 21 U.S.C.A. § 846
(West 1999). On appeal, Morales contends that the district court erred
in attributing two grams of crack cocaine to him at sentencing. This
Court conducts de novo review of a lower court’s legal interpretation
of the guidelines and reviews its underlying factual findings for clear
error. United States v. Williams, 

, 869 (4th Cir. 1992).

   At trial, Barbara Moreno testified that she had observed Morales
weighing crack cocaine and putting it into baggies. The district court
adopted the presentence report, which attributed two grams of crack
to Morales as relevant conduct based exclusively on Moreno’s testi-
mony. Morales objected at sentencing to the attribution of any crack
to him. In rejecting this objection, the district court noted that the jury
had passed on the credibility of Morales, and that there was no basis
to disturb the jury’s finding.

   Morales correctly points out, however, that the judge independently
determines drug quantity at sentencing. United States v. Gilliam, 

, 1013 (4th Cir. 1993). It does not follow from the fact that
the jury apparently credited Moreno’s testimony regarding Morales’
involvement with powder cocaine that it also credited her testimony
regarding Morales’ involvement on one or two occasions with crack
cocaine, particularly since Morales was not charged with a crack
cocaine offense and the court instructed the jury to disregard evidence
relating to uncharged conduct. Accordingly, because it appears the
district court may have erroneously concluded that it was bound by
the jury’s findings to attribute crack cocaine to Morales, we vacate
Morales’ sentence and remand so the district court may independently
assess whether the evidence specifically bearing on Morales’ involve-
ment with crack cocaine ought to be credited for sentencing purposes.
                     UNITED STATES v. MORALES                      3
   We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

                                      VACATED AND REMANDED