UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4920

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARVIN EDWARD PATRICK,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. James C. Dever III,

District Judge. (2:05-cr-00016-D-ALL)

Submitted: June 4, 2007 Decided: July 10, 2007

Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Terry F. Rose, Smithfield, North Carolina, for Appellant. George

E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P.

May-Parker, Assistant United States Attorneys, Raleigh, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Marvin Edward Patrick appeals his conviction and life

sentence following a jury trial for possession with intent to

distribute more than fifty grams of cocaine base. For the reasons

discussed below, we affirm. 

Patrick was convicted on February 26, 1996, in the

Superior Court of Currituck County, North Carolina, of possession

with intent to distribute cocaine and again on May 6, 2002, of

possession of a Schedule II controlled substance. The 1996

conviction was a Class H felony, and Patrick was sentenced to

eleven to fourteen months in prison. The 2002 conviction was a

Class I conviction, and while Patrick was sentenced to nine to

eleven months is prison, under North Carolina law his conviction

was punishable by up to fifteen months in prison. See N.C. Gen.

Stat. §§ 90-95(a)(3) and (d)(2); § 15A-1340-17(d)(2005). The

Government filed a notice of its intent to seek an enhanced penalty

based upon Patrick’s prior state felony drug convictions. Before

sentencing, Patrick filed objections and a response to the

Government’s notice to enhance his sentence based upon his two

felony drug convictions, arguing that his sentence should not be

enhanced because he did not receive a sentence exceeding one year

on his 2002 conviction. The district court overruled the

objections, concluded that both convictions were felony drug
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offenses, and sentenced Patrick to the enhanced sentence of life

imprisonment. 

The question of whether an individual has previously been

convicted of a felony is a legal determination reviewed de novo.

United States v. Haynes, 961 F.2d 50, 51 (4th Cir. 1992).

Patrick’s sole argument on appeal is that he, as an individual with

his particular characteristics, could not have received more than

one year for the 2002 drug conviction under the North Carolina

structured sentencing scheme; therefore, he asserts that offense

was not “punishable by imprisonment for a term exceeding one year.”

According to Patrick, the legal determination of whether a

conviction is punishable by imprisonment for a term exceeding one

year is directly impacted by case law beginning with Apprendi v.

New Jersey, 530 U.S. 466 (2000), and culminating with United

States v. Booker, 543 U.S. 220 (2005). Patrick asserts that those

cases define the parameters of the Sixth Amendment’s guarantee to

trial by jury as applied to sentence-enhancing facts, whether

characterized as offense elements or sentence elements.

Under the North Carolina structured sentencing scheme,

Patrick received a sentence in the presumptive range for his 2002

drug conviction. Because the offense was a Class I felony, the

aggravated minimum sentence Patrick could have received under the

structured sentencing tables was ten to twelve months’

imprisonment. See N.C. Gen. Stat. § 15A-1340.17(c) and(d). At
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sentencing for the current federal offense, however, the district

court found Patrick’s 2002 conviction was punishable by more than

one year, based on the maximum sentence that could be imposed for

that crime upon any defendant. In other words, the district court

concluded the offense was punishable by more than one year based on

the maximum aggravated sentence of fifteen months that could be

imposed under the North Carolina structured sentencing scheme for

a defendant with the worst criminal history category. This,

Patrick argues, is precisely what is prohibited by Apprendi,

Blakely and Booker.

Patrick’s argument is foreclosed by United States v.

Harp, 406 F.3d 242 (4th Cir.), cert. denied, 126 S. Ct. 297 (2005).

In Harp, the defendant argued that one of his Armed Career Criminal

Act predicate convictions (possession with intent to distribute

marijuana, a Class I felony) did not qualify as a “crime punishable

by more than one year” because the maximum “non-aggravated

punishment is only twelve months.” Id. at 245, 246. Declining to

apply an “individualized analysis,” the Court held that “to

determine whether a conviction is a crime punishable by a prison

term exceeding one year . . . we consider the maximum aggravated

sentence that could be imposed for that crime upon a defendant with

the worst possible criminal history.” Id. at 246. 

Patrick complains that this interpretation mandates an

increase in punishment based not on the defendant’s actual criminal
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history, but the potential criminal history of any person in the

class of people who committed the same crime as the defendant.

Patrick relies on United States v. Plakio, 433 F.3d 692 (10th Cir.

2005), and argues that this Court should follow the Tenth Circuit’s

reasoning. In Plakio, the defendant pled guilty to being a felon

in possession, but contested the finding that he had a prior Kansas

conviction that was punishable by a term exceeding one year. Id.

at 693. Under the Kansas sentencing guidelines, without a finding

of aggravating factors, Plakio’s maximum sentence based upon his

offense severity level and his criminal history score was eleven

months. Id. at 694. Rejecting the analysis applied in Harp, the

Tenth Circuit concluded that “Plakio’s offense never qualified as

a felony for purposes of the sentencing guidelines, regardless of

state terminology, because he was never subject to a sentence

greater than a year under Kansas law.” Id. at 695. Based on

Plakio, and in light of Blakely, Patrick asserts that Harp cannot

stand.

Despite Patrick’s argument to the contrary, the law in

this Circuit is settled by Harp. Because the statutory maximum

penalty for Patrick’s prior offense exceeded one year of

imprisonment, the offense was a felony under 21 U.S.C.

§ 841(b)(1)(A) warranting the enhanced sentence.

Accordingly, we affirm Patrick’s conviction and sentence.

We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED