United States v. Brandon ( 2010 )

Vacated by Supreme Court, November 1, 2010
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4639
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SANDAKO MESHAWN BRANDON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:02-cr-00193-JAB-1)
Submitted: April 16, 2010 Decided: April 30, 2010
Before TRAXLER, Chief Judge, WILKINSON, Circuit Judge, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christopher R. Clifton, GRACE, TISDALE & CLIFTON, P.A., Winston-
Salem, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Sandra J. Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sandako Meshawn Brandon was indicted on one count of
conspiracy to distribute more than fifty grams of cocaine base,
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2006),
and distribution of 116.8 grams of cocaine base, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(A). Following a jury trial,
Brandon was sentenced to 262 months’ imprisonment. On appeal in
2004, we affirmed Brandon’s conviction, but remanded to the
district court for resentencing as a career offender. United
States v. Brandon, 363 F.3d 341 (4th Cir. 2004). On remand, the
district court sentenced Brandon to 360 months’ imprisonment.
We affirmed, United States v. Brandon, 153 Fed. App’x 245 (4th
Cir. Nov. 21, 2005); however, upon Brandon’s filing of a
rehearing petition, we again vacated and remanded for
resentencing. United States v. Brandon, 214 Fed. App’x 315 (4th
Cir. Jan. 23, 2007). On remand, the district court reduced
Brandon’s sentence to 294 months. Brandon appealed a third time
and we remanded to the district court for resentencing in light
of Kimbrough v. United States, 552 U.S. 85 (2007). The district
court further reduced Brandon’s sentence to 240 months’
imprisonment. On appeal, counsel raises two intertwined
arguments: that Brandon was improperly designated a career
offender and that the district court erred in imposing the 240-
2
month sentence rather than a sentence eliminating the crack-to-
powder disparity. Finding no reversible error, we affirm.
A defendant is designated a career offender if: (1) he
was at least eighteen years old at the time of the instant
offense; (2) the instant offense is a felony crime of violence
or controlled substance offense; and (3) he “has at least two
prior felony convictions of either a crime of violence or a
controlled substance offense.” U.S. Sentencing Guidelines
Manual (“USSG”) § 4B1.1(a) (2002). The prior offenses must be
punishable by a term of imprisonment greater than one year.
USSG § 4B1.2(a). A crime is punishable by a term greater than
one year “if any defendant charged with that crime would receive
a sentence of more than one year,” which requires us to
“consider the maximum aggravated sentence that could be imposed
for that crime upon a defendant with the worst possible criminal
history.” United States v. Harp, 406 F.3d 242, 246 (4th Cir.
2005).
In 1997, Brandon was convicted in North Carolina state
court of common law robbery, which Brandon does not dispute was
a crime of violence, and was sentenced to eleven to fourteen
months’ imprisonment, suspended. In 1998, Brandon was convicted
of possession with intent to distribute a Schedule II controlled
substance and was sentenced to eight to ten months’
imprisonment. However, that conviction is a Class H felony, see
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N.C. Gen. Stat. § 90-95(b)(1) (2007), and is thus punishable by
a maximum aggravated sentence of thirty months’ imprisonment.
N.C. Gen. Stat. § 15A-1340.17(c), (d) (2007). Therefore,
Brandon has been convicted of the requisite two predicate
offenses qualifying him as a career offender.
Counsel argues, however, that the 1998 conviction is
not a predicate offense because Brandon was sentenced to less
than a year imprisonment. While acknowledging that Harp is the
law of the circuit, counsel argues that the court should revisit
that decision in light of the Sixth Circuit’s recent decision in
United States v. Pruitt, 545 F.3d 416 (6th Cir. 2008). * However,
“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 Industries Corp., 315 F.3d 264, 271
n.2 (4th Cir. 2002) (internal quotation marks omitted).
Clearly, then, we may not revisit Harp based on the Sixth
Circuit’s contrary, non-binding, position.
*
In Pruitt, the Sixth Circuit, in assessing whether the
defendant’s North Carolina convictions were punishable by more
than one year imprisonment, found that United States v.
Rodriquez, ___ U.S. ___, 128 S. Ct. 1783 (2008), “persuades us
that it is necessary to consider the defendant’s particular
prior record level – and not merely the worst prior record
level.” 545 F.3d at 424.
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Counsel’s remaining argument, that the district court
failed to consider the sentencing disparity between crack and
powder cocaine in sentencing Brandon to 240 months’
imprisonment, is also meritless. As discussed above, Brandon
has a prior felony drug conviction, which mandates a twenty-year
minimum sentence. 21 U.S.C. § 841(b)(1)(A). Neither Kimbrough
nor United States v. Spears, 129 S. Ct. 840 (2009), gives the
district court authority to depart below the statutory mandatory
minimum. Moreover, the Government has not moved to allow the
district court to impose a sentence below the statutory
mandatory minimum; thus, the district court had no authority to
depart below the minimum sentence. 18 U.S.C. § 3553(e) (2006);
Melendez v. United States, 518 U.S. 120, 125-26 (1996).
Accordingly, 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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