UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4648
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DERRICK KEITH USSERY, SR., a/k/a Boogaloo,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (4:10-cr-00030-H-1)
Submitted: February 28, 2012 Decided: March 7, 2012
Before WILKINSON, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jason R. Harris, WELCH & HARRIS, LLP, Jacksonville, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Keith Ussery, Sr., pled guilty to distribution
of and possession with intent to distribute fifty grams or more
of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006).
On appeal, Ussery asserts that the district court erred in
counting a 2003 North Carolina conviction as a predicate offense
for an enhanced punishment under 21 U.S.C.A.
§§ 841(b)(1)(A), 851, and as a predicate felony for his career
offender designation, because the sentence he actually received
for the 2003 conviction was less than one year. Ussery’s claims
are meritless. It is clear from the record that Ussery did not
receive an enhanced sentence under § 841(b)(1)(A). Further,
Ussery has two uncontested predicate convictions that support
his treatment as a career offender under U.S. Sentencing
Guidelines Manual (“USSG”) § 4B1.1 (2010), even without the 2003
conviction. Finally, the 2003 conviction was properly
considered as a predicate offense. Accordingly, we affirm.
A “prior felony conviction,” for purposes of USSG
§ 4B1.1(a), is a previous adult conviction “punishable by death
or imprisonment for a term exceeding one year.” USSG § 4B1.2,
cmt. n.1. Under the North Carolina Structured Sentencing Act,
sentences are contingent on two factors: the designated “class
of offense” and the offender’s “prior record level.” N.C. Gen.
Stat. § 15A–1340.13(b) (2009). Ussery’s 2003 conviction was a
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Class H felony, and he had a prior record level of IV at the
time. Sentenced in the presumptive range, Ussery’s maximum
sentencing range was eleven to fourteen months. N.C. Gen. Stat.
§ 15A-1340.17(c)-(d) (2009). Therefore, while Ussery was
sentenced to only nine to eleven months, he was subject to a
sentence greater than twelve months in prison. This conviction
accordingly qualifies as a “prior felony” within the meaning of
§ 4B1.1 and as defined in USSG § 4B1.2. See United States v.
Simmons, 649 F.3d 237, 244-45 (4th Cir. 2011) (holding that a
district court must look to whether a particular defendant could
receive more than one year in prison based upon his offense
class and prior record level to determine whether a prior North
Carolina conviction may serve as a career offender predicate
offense).
Therefore, Ussery’s sentencing challenges fail. We
affirm the judgment of the district court. 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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