                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4648


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DERRICK KEITH USSERY, SR., a/k/a Boogaloo,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (4:10-cr-00030-H-1)


Submitted:   February 28, 2012               Decided:   March 7, 2012


Before WILKINSON, MOTZ, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jason R. Harris, WELCH & HARRIS, LLP, Jacksonville, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Derrick Keith Ussery, Sr., pled guilty to distribution

of and possession with intent to distribute fifty grams or more

of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006).

On    appeal,      Ussery   asserts      that     the    district    court    erred   in

counting a 2003 North Carolina conviction as a predicate offense

for       an        enhanced        punishment            under       21       U.S.C.A.

§§ 841(b)(1)(A), 851, and as a predicate felony for his career

offender designation, because the sentence he actually received

for the 2003 conviction was less than one year.                       Ussery’s claims

are meritless.         It is clear from the record that Ussery did not

receive    an      enhanced     sentence     under      § 841(b)(1)(A).        Further,

Ussery has two uncontested predicate convictions that support

his    treatment       as   a    career      offender      under     U.S.    Sentencing

Guidelines Manual (“USSG”) § 4B1.1 (2010), even without the 2003

conviction.           Finally,         the   2003       conviction     was     properly

considered as a predicate offense.                 Accordingly, we affirm.

               A   “prior     felony    conviction,”       for     purposes    of   USSG

§ 4B1.1(a), is a previous adult conviction “punishable by death

or imprisonment for a term exceeding one year.”                        USSG § 4B1.2,

cmt. n.1.          Under the North Carolina Structured Sentencing Act,

sentences are contingent on two factors: the designated “class

of offense” and the offender’s “prior record level.”                          N.C. Gen.

Stat. § 15A–1340.13(b) (2009).                   Ussery’s 2003 conviction was a

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Class H felony, and he had a prior record level of IV at the

time.     Sentenced   in    the    presumptive        range,   Ussery’s    maximum

sentencing range was eleven to fourteen months.                 N.C. Gen. Stat.

§ 15A-1340.17(c)-(d)       (2009).            Therefore,   while       Ussery   was

sentenced to only nine to eleven months, he was subject to a

sentence greater than twelve months in prison.                  This conviction

accordingly qualifies as a “prior felony” within the meaning of

§ 4B1.1 and as defined in USSG § 4B1.2.                  See United States v.

Simmons, 649 F.3d 237, 244-45 (4th Cir. 2011) (holding that a

district court must look to whether a particular defendant could

receive more than one year in prison based upon his offense

class and prior record level to determine whether a prior North

Carolina conviction may serve as a career offender predicate

offense).

            Therefore,     Ussery’s      sentencing     challenges     fail.    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




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