UNPUBLISHED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Affirmed by unpublished per curiam opinion.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., WinstonSalem, 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Unpublished opinions are not binding precedent in this circuit. 

Vacated by Supreme Court, November 1, 2010
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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-
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month sentence rather than a sentence eliminating the crack-topowder 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).*

 * 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. 

 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.
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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