UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4139

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

WESLEY DEVON FOOTE,

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-00177-NCT)

Submitted: September 12, 2007 Decided: October 5, 2007

Before MICHAEL, TRAXLER, and KING, 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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

Vacated by Supreme Court, January 22, 2008
- 2 -

PER CURIAM:

Wesley Devon Foote pled guilty to three counts of

distribution of cocaine base (crack) after a prior conviction for

a drug offense, 21 U.S.C.A. § 841(a), (b)(1)(B) (West 1999 & Supp.

2007). He was sentenced as a career offender to a term of 262

months imprisonment. U.S. Sentencing Guidelines Manual § 4B1.1

(2005). In this appeal, Foote contends that he was improperly

sentenced as a career offender, that this court’s standard of

review for criminal sentences is an unconstitutional return to

mandatory guideline sentencing, and that the district court

erroneously believed that it lacked authority to impose a sentence

below the guideline range based in part on the disparity in

sentences for crack and cocaine offenses. We affirm.

Foote first asserts that his 1995 North Carolina

conviction for possession of cocaine with intent to distribute was

not a felony conviction, as the term is used in § 4B1.1, because

the maximum sentence he could have received under North Carolina’s

structured sentencing scheme was 10-12 months. The offense is a

Class H felony, see N.C. Gen. Stat. § 90-95(a)(1), (b)(1) (2005),

and the maximum sentence is twenty-five to thirty months

imprisonment. N.C. Gen. Stat. § 15A-1340.17(c), (d) (2005). A

“prior felony conviction” is defined in Application Note 1 to USSG

§ 4B1.2 as a state or federal offense “punishable by death or

imprisonment exceeding one year.” 
- 3 -

In United States v. Jones, 195 F.3d 205, 206-07 (4th Cir.

1999), this court held that “a prior North Carolina conviction was

for a crime punishable by imprisonment for a term exceeding one

year if any defendant charged with that crime could receive a

sentence of more than one year.” (internal quotation marks and

citation omitted). After the Supreme Court’s decision in Blakely

v. Washington, 542 U.S. 296 (2004), this court reaffirmed its

holding. United States v. Harp, 406 F.3d 242, 246-47 (4th Cir.),

cert. denied, 546 U.S. 919 (2005). 

Foote acknowledges Harp, but argues that Harp cannot stand in

light of Blakely, United States v. Booker, 543 U.S. 220 (2005), and

Cunningham v. California, 127 S. Ct. 856 (2007). As noted, Harp

specifically held that Blakely did not affect this court’s prior

holding in Jones. Moreover, Harp was argued and decided after the

opinion in Booker issued. Finally, Cunningham does not provide any

basis for revisiting the issue. It held that California’s

determinate sentencing law violated the 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.” 127 S. Ct. at 860. However, we noted in Harp that

“North Carolina courts have already concluded that the state

sentencing regime can accommodate the process that Blakely

demands.” Harp, 406 F.3d at 247 (citing State v. Harris, 602 S.E.2d

697, 702 (N.C. Ct. App. 2004), holding aff’d, 622 S.E.2d 615, 620
- 4 -

(N.C. 2005)). In any case, “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).

Foote’s challenge to this court’s decisions which accord

a presumption of reasonableness to a sentence within a properly

calculated advisory guideline range is foreclosed by Rita v. United

States, 127 S. Ct. 2456 (2007). 

Last, Foote asserts that the district court erred in

refusing to sentence him below the guideline range because of the

disparity between cocaine and crack sentences. This court has held

that, after Booker, a sentencing court cannot vary from the

advisory sentencing guideline range by substituting its own

crack-to-powder cocaine ratio for the 100:1 ratio established by

Congress. United States v. Eura, 440 F.3d 625, 633-34 (4th Cir.

2006), petition for cert. filed, __ U.S.L.W. __ (U.S. June 20,

2006) (No. 05-11659). Although Foote suggests that we should

reconsider the holding in Eura, we will not do so for the reasons

previously explained. See Scotts Co., 315 F.3d at 271-72 n.2.

We therefore affirm the sentence imposed by the district

court. We dispense with oral argument because the facts and legal
- 5 -

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED