United States v. Lemons , 280 F. App'x 258 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4481
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARIO DEANDRE LEMONS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00339-NCT)
Submitted: December 3, 2007 Decided: June 2, 2008
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.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, David P.
Folmar, Jr., Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mario Deandre Lemons entered a conditional plea of guilty
to one count of possession of a firearm by a felon, 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. Lemons appeals, contending that his predicate state
convictions were not crimes “punishable by imprisonment for a term
exceeding one year,” as required by § 922(g)(1). Finding no error,
we affirm.
The district court relied on a 2005 conviction for
possession of cocaine with intent to sell and deliver, a Class H
felony under North Carolina law. Lemons asserts that the maximum
sentence for the crime based on his individual criminal history and
North Carolina’s structured sentencing scheme did not exceed twelve
months. However, as Lemons 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). Thus, because it is undisputed that
a sentence of over twelve months could be imposed on a defendant
convicted of possession with the intent to sell and deliver cocaine
in North Carolina, the district court properly considered Lemons’
prior conviction as a predicate felony for purposes of § 922(g)(1).
Lemons 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
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violated 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”). 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 Indus. Corp.,
315 F.3d 264, 271-72 n.2 (4th Cir. 2002) (internal quotation marks
and citation omitted). Moreover, our decision in Harp was not
called into question by Cunningham, as Harp involved the
determination of a maximum sentence without regard to the findings
made by a sentencing judge as to the particular defendant.
We find similarly meritless Lemons’ related arguments
predicated on the rule of lenity, the principle of constitutional
doubt, and an unpublished opinion addressing the application of the
Assimilative Crimes Act, 18 U.S.C. § 13 (2000).
Accordingly, we affirm Lemons’ 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
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