Vacated by Supreme Court, January 22, 2008
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4139
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WESLEY DEVON FOOTE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00177-NCT)
Submitted: September 12, 2007 Decided: October 5, 2007
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, William C. Ingram, First
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, David P.
Folmar, Jr., Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wesley Devon Foote pled guilty to three counts of
distribution of cocaine base (crack) after a prior conviction for
a drug offense, 21 U.S.C.A. § 841(a), (b)(1)(B) (West 1999 & Supp.
2007). He was sentenced as a career offender to a term of 262
months imprisonment. U.S. Sentencing Guidelines Manual § 4B1.1
(2005). In this appeal, Foote contends that he was improperly
sentenced as a career offender, that this court’s standard of
review for criminal sentences is an unconstitutional return to
mandatory guideline sentencing, and that the district court
erroneously believed that it lacked authority to impose a sentence
below the guideline range based in part on the disparity in
sentences for crack and cocaine offenses. We affirm.
Foote first asserts that his 1995 North Carolina
conviction for possession of cocaine with intent to distribute was
not a felony conviction, as the term is used in § 4B1.1, because
the maximum sentence he could have received under North Carolina’s
structured sentencing scheme was 10-12 months. The offense is a
Class H felony, see N.C. Gen. Stat. § 90-95(a)(1), (b)(1) (2005),
and the maximum sentence is twenty-five to thirty months
imprisonment. N.C. Gen. Stat. § 15A-1340.17(c), (d) (2005). A
“prior felony conviction” is defined in Application Note 1 to USSG
§ 4B1.2 as a state or federal offense “punishable by death or
imprisonment exceeding one year.”
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In United States v. Jones, 195 F.3d 205, 206-07 (4th Cir.
1999), this court held that “a prior North Carolina conviction was
for a crime punishable by imprisonment for a term exceeding one
year if any defendant charged with that crime could receive a
sentence of more than one year.” (internal quotation marks and
citation omitted). After the Supreme Court’s decision in Blakely
v. Washington, 542 U.S. 296 (2004), this court reaffirmed its
holding. United States v. Harp, 406 F.3d 242, 246-47 (4th Cir.),
cert. denied, 546 U.S. 919 (2005).
Foote acknowledges Harp, but argues that Harp cannot stand in
light of Blakely, United States v. Booker, 543 U.S. 220 (2005), and
Cunningham v. California, 127 S. Ct. 856 (2007). As noted, Harp
specifically held that Blakely did not affect this court’s prior
holding in Jones. Moreover, Harp was argued and decided after the
opinion in Booker issued. Finally, Cunningham does not provide any
basis for revisiting the issue. It held that California’s
determinate sentencing law violated the Sixth Amendment by
“assign[ing] to the trial judge, not to the jury, authority to find
the facts that expose a defendant to an elevated ‘upper term’
sentence.” 127 S. Ct. at 860. However, we noted in Harp that
“North Carolina courts have already concluded that the state
sentencing regime can accommodate the process that Blakely
demands.” Harp, 406 F.3d at 247 (citing State v. Harris, 602 S.E.2d
697, 702 (N.C. Ct. App. 2004), holding aff’d, 622 S.E.2d 615, 620
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(N.C. 2005)). In any case, “a panel of this court cannot overrule,
explicitly or implicitly, the precedent set by a prior panel of
this court. Only the Supreme Court or this court sitting en banc
can do that.” Scotts Co. v. United Indus. Corp., 315 F.3d 264,
271-72 n.2 (4th Cir. 2002) (internal quotation marks and citation
omitted).
Foote’s challenge to this court’s decisions which accord
a presumption of reasonableness to a sentence within a properly
calculated advisory guideline range is foreclosed by Rita v. United
States, 127 S. Ct. 2456 (2007).
Last, Foote asserts that the district court erred in
refusing to sentence him below the guideline range because of the
disparity between cocaine and crack sentences. This court has held
that, after Booker, a sentencing court cannot vary from the
advisory sentencing guideline range by substituting its own
crack-to-powder cocaine ratio for the 100:1 ratio established by
Congress. United States v. Eura, 440 F.3d 625, 633-34 (4th Cir.
2006), petition for cert. filed, __ U.S.L.W. __ (U.S. June 20,
2006) (No. 05-11659). Although Foote suggests that we should
reconsider the holding in Eura, we will not do so for the reasons
previously explained. See Scotts Co., 315 F.3d at 271-72 n.2.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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