US v. Xavier Blackwood

Filing 920100302

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4762

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. XAVIER ANTWONE BLACKWOOD, Defendant ­ Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:08-cr-00258-WO-1)

Submitted:

February 25, 2010

Decided:

March 2, 2010

Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Louis C. Allen III, Federal Public Defender, William S. Trivette, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Terry Michael Meinecke, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Xavier Antwone Blackwood pled guilty pursuant to a

written plea agreement to maintaining drug-involved premises, 21 U.S.C. § 856(a)(1), (b) (2006), and possession of a firearm

after having previously been convicted of a crime punishable by imprisonment §§ 922(g)(1), Information of for a term exceeding The pursuant one year, 18 U.S.C. an

924(a)(2) Prior

(2006).

Government to 21

filed

Conviction

U.S.C.

§ 851

(2006), stating that Blackwood committed the subject offenses after a prior state felony drug conviction for possession with intent to sell and deliver cocaine (two counts) became final. Blackwood was sentenced to 85 months' imprisonment. On appeal,

counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating in his view there are no meritorious issues for appeal, but questioning whether the district court erred in finding Blackwood's prior drug conviction for which Blackwood received a sentence of six to eight months "a crime punishable by imprisonment for a term exceeding one year" under 18 U.S.C. § 922(g). Blackwood was notified of his right to file Finding no

a pro se supplemental brief but has not done so. error, we affirm. Blackwood argues that his prior state

conviction

cannot serve as a predicate offense under 18 U.S.C. § 922(g) because, under the North Carolina Fair Sentencing Act, he was 2

subject to less than one year of imprisonment for the prior conviction. However, as counsel concedes, this argument is

foreclosed by our decision in United States v. Harp, 406 F.3d 242, 246-47 (4th Cir. 2005) (determining that prior satisfaction conviction of was

recidivist

guideline

requirement

punishable by term exceeding one year depends on "the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history"); see also United States v. Rodriguez, 128 S. Ct. 1783, 1787-93 (2008)

(defining phrase "maximum term of imprisonment" in 18 U.S.C. § 924(e) (2006) as maximum term permitted by state statute,

including recidivist provisions). at issue was clearly

Because the prior conviction by a maximum term of

punishable

imprisonment exceeding one year, we conclude the district court did not err in considering it a predicate conviction for

purposes of 18 U.S.C. § 922(g). In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. court. writing, Accordingly, we affirm the judgment of the district

This court requires that counsel inform his client, in of his right to petition the Supreme Court of the

United States for further review.

If the client requests that a

petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move this court for leave 3

to withdraw from representation.

Counsel's motion must state We dispense with contentions the court are and

that a copy thereof was served on the client. oral argument because in the the facts and legal before

adequately

presented

materials

argument would not aid in the decisional process. AFFIRMED

4