UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4580

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

FRANKLIN ALEXANDER MILLS,

Defendant – Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. William L. Osteen, 

Jr., District Judge. (1:09-cr-00039-WO-1)

Submitted: September 29, 2011 Decided: December 15, 2011

Before MOTZ, KING, and AGEE, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

Louis C. Allen III, Federal Public Defender, William S. 

Trivette, Assistant Federal Public Defender, Greensboro, North 

Carolina, for Appellant. John W. Stone, Jr., Acting United 

States Attorney, Michael F. Joseph, Assistant United States 

Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

A jury convicted Franklin Alexander Mills of multiple 

drug and firearms offenses,1

Mills argues that the district court erred in denying 

his motion to suppress the evidence recovered following a canine 

sniff of his vehicle. In reviewing the district court’s denial 

of a motion to suppress, “[w]e review the district court’s legal 

determinations de novo and its factual determinations for clear 

error.” 

and the district court sentenced him 

to a total of 180 months’ imprisonment. On appeal, Mills argues 

that the district court erred in denying his motion to suppress 

evidence, improperly sentenced him to the mandatory minimum 

five-year term of imprisonment for violation of § 924(c) to run 

consecutively to the mandatory minimum sentence for violation of 

§ 841(b)(1)(B), and improperly enhanced his sentence based on a 

prior North Carolina conviction. We affirm Mills’ convictions

but vacate his sentence in part and remand to the district court 

for resentencing.

United States v. Kelly, 592 F.3d 586, 589 (4th Cir.), 

cert. denied

 1 The jury convicted Mills of possession with intent to 

distribute cocaine base and cocaine hydrochloride, in violation 

of 21 U.S.C.A. § 841(a)(1), (b)(1)(B), and (b)(1)(C) (West 1999 

& Supp. 2011), possession of a firearm in furtherance of a drug 

trafficking crime, in violation of 18 U.S.C.A. § 924(c)(1)(A)(i) 

(West 2000 & Supp. 2011), and possession of a firearm by a 

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006).

, 130 S. Ct. 3374 (2010). When the district court 
3

has denied a suppression motion, “we construe the evidence in 

the light most favorable to the government.” Id. Our review of 

the record leads us to conclude that the district court did not 

err in denying Mills’ motion to suppress. See United States v. 

Farrior

Mills next argues that the district court erred in 

sentencing him to a mandatory minimum five-year term of 

imprisonment for violation of § 924(c) to run consecutively to 

the ten-year mandatory minimum sentence for violation of 

§ 841(b)(1)(B). Mills’ argument is, however, foreclosed by the 

Supreme Court’s recent decision in 

, 535 F.3d 210, 220 (4th Cir. 2008) (concluding that

brief canine sniff after officer issued citation and returned 

license and registration was “a de minimis intrusion on [the 

defendant’s] liberty interest”). Therefore, we affirm Mills’ 

convictions. 

Abbott v. United States

Finally, Mills argues that the North Carolina drug 

conviction used to enhance his mandatory minimum sentence under 

§ 841(b)(1)(B) was not punishable by more than one year of 

imprisonment. 

, 131 

S. Ct. 18, 23 (2010) (holding “that a defendant is subject to a 

mandatory, consecutive sentence for a § 924(c) conviction, and 

is not spared from that sentence by virtue of receiving a higher 

mandatory minimum on a different count of conviction”). 

Therefore, we affirm this portion of Mills’ sentence. 

See 21 U.S.C. § 802(44) (2006) (defining felony 
4

for purposes of § 841 as a crime “punishable by imprisonment for 

more than one year”); N.C. Gen. Stat. § 15A-1340.17(c)-(d) 

(2007) (setting out minimum and maximum sentences applicable 

under North Carolina’s sentencing scheme to offenses committed 

on or after Dec. 1, 1995, and before Dec. 1, 2009).2 When Mills

raised this argument in the district court, it was foreclosed by 

our decision in United States v. Harp, 406 F.3d 242 (4th Cir. 

2005). Subsequently, however, we overruled Harp with our en 

banc decision in United States v. Simmons, 649 F.3d 237 (4th 

Cir. 2011) (en banc), in which the defendant raised the same 

argument. In view of Simmons

Accordingly, we affirm Mills’ convictions, affirm his 

sentence in part and vacate his sentence in part, and remand for 

resentencing in accordance with 

, we vacate this portion of Mills’

sentence and remand the case to the district court for 

resentencing.

Simmons. 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 IN PART,

VACATED IN PART,

 2 The statute subsequently was amended, but the amendments 

do not apply to Mills.

AND REMANDED