Vacated by Supreme Court, June 21, 2010
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4904
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BOBBY LEE WATSON,
Defendant - Appellant.
Appeal from the United States District Court for the
Western District of North Carolina, at Charlotte. Frank D.
Whitney, District Judge. (3:03-cr-00220-FDW-6)
Submitted: May 29, 2009 Decided: July 7, 2009
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In a prior appeal, we affirmed the conviction of Bobby
Lee Watson on a charge of possession with intent to distribute
fifty grams or more of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) (2006). We also affirmed the district court’s
determination that Watson’s North Carolina conviction for
maintaining a vehicle for the keeping or selling of drugs, in
violation of N.C. Gen. Stat. Ann. § 90-108(a)(7) (2007),
constituted a felony drug offense and subjected him to the
enhanced penalties under 21 U.S.C.A. § 841(b)(1)(A) (West 1999 &
Supp. 2008). Although Watson was subject to a maximum sentence
of ten months on this charge based on his criminal history, the
maximum term of imprisonment allowable under the statute was
greater than one year and thus qualified as a prior felony
conviction. See United States v. Jones, 195 F.3d 205, 206-07
(4th Cir. 1999) (holding that a prior North Carolina conviction
qualified as a “crime punishable by imprisonment for a term
exceeding one year” if any defendant charged with that offense
could be sentenced to greater than one year of imprisonment);
see also United States v. Harp, 406 F.3d 242 (4th Cir. 2005)
(reaching same conclusion in context of career offender
enhancement). However, we found that Watson had only one prior
conviction that qualified as a felony drug offense, rather than
two, and therefore vacated his life sentence and remanded for
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resentencing within the statutory sentencing range of twenty
years to life.
On resentencing, the district court imposed a twenty-
year sentence. Watson now appeals and argues that a recent
decision of the Supreme Court requires a contrary resolution of
the determination of whether his North Carolina offense
qualifies as a felony drug offense.
In United States v. Rodriguez, 128 S. Ct. 1783 (2008),
the Supreme Court held that “the phrase ‘maximum term of
imprisonment . . . prescribed by law’ for the ‘offense’ was not
meant to apply to the top sentence in a guidelines range.” Id.
at 1792. Rather, the maximum term of imprisonment was to be
determined based on the maximum set by the recidivist provision
of the statute. This ruling supports, rather than contradicts,
our decisions in Jones and Harp.
Because Rodriguez does not amount to controlling
authority that is contrary to this court’s earlier determination
that Watson’s North Carolina conviction was punishable by more
than one year, it does not provide an exception to the law of
the case doctrine. See United States v. Aramony, 166 F.3d 655,
661 (4th Cir. 1999). Accordingly, we uphold the determination
that Watson had a prior felony drug conviction, and we affirm
his 240-month sentence. We deny Watson’s motion for leave to
file a pro se supplemental brief. We dispense with oral
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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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