UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4492

DONALD SCOTT SPANN,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Salisbury.

William L. Osteen, Sr., District Judge.

(CR-96-242)

Submitted: March 31, 1998

Decided: June 22, 1998

Before MURNAGHAN, WILKINS, and LUTTIG,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Benjamin David Porter, MORROW, ALEXANDER, TASH &

LONG, Winston-Salem, North Carolina, for Appellant. Walter C.

Holton, Jr., United States Attorney, Sandra J. Hairston, Assistant

United States Attorney, Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Donald Scott Spann pled guilty to bank robbery, 18 U.S.C.A.

§ 2113(a) (West Supp. 1998), and was sentenced as a career offender

to a term of 160 months imprisonment. See U.S. Sentencing Guidelines Manual § 4B1.1 (1995). Spann appeals his sentence, asserting

that the district court erred in finding that two of his predicate felony

convictions were "punishable by imprisonment for a term exceeding

one year." See USSG § 4B1.2(1). We affirm.

A defendant is a career offender if he is at least eighteen years old

at the time of the instant offense, the instant offense is a crime of violence or a drug offense, and he has at least two prior felony convictions for either a crime of violence or a drug offense. See USSG

§ 4B1.1. Under the federal sentencing guidelines, a prior felony conviction is defined as a conviction of any federal or state offense punishable by a term of imprisonment exceeding one year, regardless of

whether the offense is designated as a felony and regardless of the

sentence actually imposed. See USSG #8E8E # 4A1.2, comment. (n.3),

4B1.1(1). Spann had prior state convictions for assault with a deadly

weapon and assault on a female--offenses which at the time were

punishable by imprisonment of up to two years.*

Spann argues that the assault convictions were not punishable by

a term exceeding one year because, with good time credits, a defen-

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*Spann's convictions took place in 1989 and 1993. In 1994, the North

Carolina legislature reduced the maximum sentence for these offenses to

150 days. See United States v. Johnson, 114 F.3d 435, 445 (4th Cir.),

cert. denied, ___ U.S. ___, 66 U.S.L.W. 3262 (U.S. Oct. 6, 1997) (No.

97-5705). Spann also had prior convictions for breaking and entering a

residence on at least four occasions; these charges were consolidated for

judgment and counted as one prior sentence. See USSG § 4A1.2(a)(2) &

comment, (n.3).

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dant who was subject to the maximum two-year sentence could serve

less than one year unless he committed major infractions while in custody. However, the guideline plainly defines a felony in terms of the

statutory maximum sentence rather than the amount of time served.

See United States v. Raynor, 939 F.2d 191, 194-95 (4th Cir. 1991)

(misdemeanor carrying two-year maximum sentence properly treated

as felony in federal sentencing); see also United States v. Johnson,

114 F.3d 435, 444-45 (4th Cir.) (pre-1994 North Carolina conviction

for assault on female exposed defendant to imprisonment of more

than a year), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3262 (U.S. Oct.

6, 1997) (No. 97-5705). Therefore, we find that Spann was correctly

sentenced as a career offender.

Accordingly, the sentence is affirmed. 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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