United States v. Garner , 235 F. App'x 168 ( 2007 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 07-4217
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    BILLY JOE GARNER,
    Defendant - Appellant.
    Appeal from the United States District Court for the Middle
    District of North Carolina, at Durham. James A. Beaty, Jr., Chief
    District Judge. (1:06-cr-00332-JAB)
    Submitted:   July 18, 2007                 Decided:   August 16, 2007
    Before WILKINSON and TRAXLER, Circuit Judges, and WILKINS, Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.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, Michael F.
    Joseph, Assistant United States Attorney, Greensboro, North
    Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Billy Joe Garner entered a conditional guilty plea to one
    count of possessing ammunition after having been convicted of a
    felony, in violation of 
    18 U.S.C. §§ 922
    (g)(1), 924(a)(2) (2000),
    reserving the right to challenge the district court’s denial of his
    motion to dismiss the indictment.   Garner appeals, contending that
    his predicate state conviction for conspiracy to sell and deliver
    methamphetamine was not a “crime punishable by imprisonment for a
    term exceeding one year” under § 922(g)(1).    We affirm.
    Garner asserts that the maximum sentence for the crime
    based on his individual criminal history and North Carolina’s
    structured sentencing scheme was less than twelve months. However,
    as Garner concedes, his argument is foreclosed by United States v.
    Harp, 
    406 F.3d 242
    , 246-47 (4th Cir.), cert. denied, 
    126 S. Ct. 297
    (2005).*   Because it is undisputed that a sentence of over twelve
    months could be imposed on a defendant convicted of conspiracy to
    sell and deliver methamphetamine in North Carolina, the district
    *
    Garner urges us to reexamine Harp in light of the Supreme
    Court’s recent decision in Cunningham v. California, 
    127 S. Ct. 856
    , 860 (2007) (holding 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”).       Nothing in
    Cunningham affects the analysis in Harp. Moreover, “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
    , 272 n.2 (4th Cir. 2002) (internal quotation
    marks and citation omitted).
    - 2 -
    court properly considered Garner’s prior conviction as a predicate
    felony for purposes of § 922(g)(1).
    Accordingly, we affirm Garner’s conviction and sentence.
    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
    - 3 -
    

Document Info

Docket Number: 07-4217

Citation Numbers: 235 F. App'x 168

Judges: Per Curiam, Traxler, Wilkins, Wilkinson

Filed Date: 8/16/2007

Precedential Status: Non-Precedential

Modified Date: 8/7/2023