                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-5107


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARKEENUS CLEAVON WILKERSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:10-cr-00032-MR-13)


Submitted:   August 16, 2012                 Decided:   August 21, 2012


Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Amy Lee Copeland, AMY LEE COPELAND, LLC, Savannah, Georgia, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Markeenus Cleavon Wilkerson pled guilty, pursuant to a

plea   agreement,         to    conspiracy         to     possess       with           intent     to

distribute        fifty     grams     or    more     of     cocaine          base       and     five

kilograms     or     more      of    cocaine,      in     violation          of        21     U.S.C.

§§ 841(a)(1),       846     (2006).         He    was     sentenced         to     168       months’

imprisonment.        Wilkerson timely appeals.

             On    appeal,      counsel      has     filed       a    brief       pursuant        to

Anders v. California, 386 U.S. 738 (1967), conceding that there

are no meritorious issues for appeal but raising the following

questions: (1) whether Wilkerson’s guilty plea was conducted in

compliance with Fed. R. Crim. P. 11; (2) whether Wilkerson’s two

prior felony convictions were proper predicates for the career

offender     Guideline;         (3)     whether         application           of       the      Fair

Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2327

(“FSA” or “the Act”), would have resulted in a lower sentence;

and    (4)        whether      Wilkerson’s          sentence           is        substantively

reasonable.         Wilkerson has filed a pro se supplemental brief

arguing    that     the     magistrate       judge      did   not      comply          with     Rule

11(b)(3)     in    accepting        Wilkerson’s         guilty       plea,       and     that    his

sentence     is     substantively          unreasonable       because            the        district

court did not adequately consider sentencing disparity between

codefendants under 18 U.S.C. § 3553(a)(6) (2006).                             We affirm.



                                              2
            First,         counsel       and    Wilkerson          both     challenge    the

validity of the guilty plea.                    Our review of the plea hearing

reveals that the magistrate judge substantially complied with

the dictates of Rule 11 in accepting Wilkerson’s plea, and we

perceive      no    reason    to       question       its     validity.        See    United

States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).

Although    the      magistrate         judge       deferred      until   sentencing     the

determination that a factual basis existed for the plea, Rule

11(b)(3),     the     parties      stipulated         to    this    delay    in    the   plea

agreement and this court has approved such a procedure.                               United

States   v.     Ketchum,      550       F.3d    363,       366-67    (4th     Cir.    2008).

Therefore, we affirm Wilkerson’s conviction.

            Next, we examine whether two prior convictions were

properly      considered          as     predicates         for     Wilkerson’s       career

offender    status.          “We       review   de     novo    a    question      concerning

whether a prior state conviction qualifies as a prior felony

conviction         under    the    career           offender      provision.”         United

States v. Jones, 667 F.3d 477, 482 (4th Cir. 2012).                               Under U.S.

Sentencing         Guidelines          Manual       (“USSG”)       § 4B1.1     (2010),     a

defendant is a career offender if he was at least eighteen at

the time of the present offense, that offense is either a felony

crime of violence or a felony drug offense, and the defendant

has at least two prior felony convictions for crimes of violence

or controlled substances.                Wilkerson was in his thirties at the

                                                3
time of this felony drug offense, and he had one prior North

Carolina conviction for felony possession with intent to sell

cocaine and one for felony discharging a firearm into a vehicle.

                 Although Wilkerson was sentenced for both convictions

on    the    same    day,     the   district        court       correctly         counted   both

convictions         because     they     were       separated         by     an    intervening

arrest.          USSG §§ 4A1.2(a)(2); 4B1.2(c).                 The drug conviction is

a    proper       predicate    because    it       was    an     offense      punishable     by

imprisonment over one year and violated a state law prohibiting

possession of a controlled substance with intent to distribute.

USSG § 4B1.2(b).             Although Wilkerson was seventeen at the time

of the offense, he was convicted as an adult.                              USSG § 4B1.2 cmt.

n.1.

                 Wilkerson’s other predicate offense, felony discharge

of a firearm into an occupied vehicle, was properly counted as a

crime       of    violence    because     it       “has    as    an    element       the    use,

attempted use, or threatened use of physical force against the

person of another.”            USSG § 4B1.2 cmt. n.1; see United States v.

Curtis, 645 F.3d 937, 940-43 (7th Cir. 2011) (finding similar

Illinois          statute     to    be    crime           of     violence          under    USSG

§ 4B1.2(a)(1)).          Wilkerson was sentenced to ten years for that

offense.          Accordingly, he was properly sentenced as a career

offender.



                                               4
             Next, counsel questions whether application of the FSA

would    affect        Wilkerson’s          sentence.            Wilkerson’s       conspiracy

offense occurred before the effective date of the Act, but he

was sentenced after that date.                         The Supreme Court has recently

held that the FSA’s new, lower mandatory minimums apply in the

post-Act     sentencing          of    pre-Act         criminal    conduct.        Dorsey   v.

United   States,           132   S.   Ct.     2321,      2335-36    (2012).        Therefore,

Wilkerson, on direct appeal, can reap any benefit conveyed by

the   FSA.        As       counsel     concedes,        however,    because    Wilkerson’s

sentence was driven by his career offender status rather than by

21 U.S.C. § 841(b), the statutory change did not affect his

sentence.

             Before the FSA, Wilkerson, charged with fifty grams or

more of cocaine base and with a 21 U.S.C. § 851 information of a

prior conviction for a felony drug offense, faced twenty years

to life under 21 U.S.C. § 841(b)(1)(A) (2006).                           After the Act’s

effective date, he faces ten years to life under 21 U.S.C.A.

§ 841(b)(1)(B) (West 1999 & Supp. 2012).

             As        a    career      offender,         however,     Wilkerson’s       base

offense level was dictated by the statutory maximum applicable

to the offense.              USSG § 4B1.1(b).              Both before and after the

effective date of the FSA, because of his prior felony drug

conviction,       Wilkerson           faced    a       maximum    sentence    of    life,   21

U.S.C. § 841(b)(1)(A) (2006); 21 U.S.C.A. § 841(b)(1)(B) (West

                                                   5
1999     &    Supp.        2012),       for    an       offense      level     of    37.          USSG

§ 4B1.1(b)(1).                  Thus,    the       new     statute      has     no    impact       on

Wilkerson’s Guidelines range and the sentence imposed.

               Finally,          both       counsel       and   Wilkerson       challenge          the

substantive reasonableness of Wilkerson’s sentence.                                  We review a

sentence       for     reasonableness,               under      an    abuse     of        discretion

standard.        Gall v. United States, 552 U.S. 38, 51 (2007).                                     We

first        review    for           significant         procedural        errors,        including

whether the district court improperly calculated the Guidelines

range,       failed        to    consider      the       § 3553(a)     factors,           based   its

sentence on clearly erroneous facts, or failed to adequately

explain       the     sentence.              Id.         Only   if    we     find     a    sentence

procedurally          reasonable             may     we      consider         its     substantive

reasonableness.             United States v. Carter, 564 F.3d 325, 328 (4th

Cir. 2009).

               As     we    discussed         above,      the     district      court      properly

determined Wilkerson to be a career offender, and that status

dictated both his base offense level of 37 and his criminal

history category (“CHC”) of VI.                         USSG § 4B1.1(b).            With a three-

level deduction for acceptance of responsibility, he faced a

sentencing       range          of    262     to    327    months’     imprisonment.               The

district       court       granted       the       Government’s        motion       for    downward

departure, for a new range of 188 to 235 months.                                          The court

ultimately       sentenced            Wilkerson         below   this    new     range,       to    168

                                                    6
months.         In   announcing             sentence,         the    district      court      fully

explained      its   reasoning              and    addressed         the    issues     raised    by

counsel and by Wilkerson in his allocution.                                The court’s careful

attention to sentencing produced no procedural errors, and we

therefore find the sentence procedurally reasonable.

               We assess the substantive reasonableness of a sentence

under the totality of the circumstances to determine whether the

district court abused its discretion in imposing a 168-month

sentence.       United States v. Susi, 674 F.3d 278, 289 (4th Cir.

2012).          Wilkerson’s            sentence          is     below       the    recalculated

Guidelines range, and as such is presumptively reasonable.                                    Id.

               Neither       counsel          nor        Wilkerson          has    successfully

rebutted this presumption.                        Counsel concedes as much, noting

that Wilkerson received two downward departures, and that he was

sentenced within the range requested by counsel.                                  In his pro se

brief,     Wilkerson        asserts          that       the     district       court    did     not

adequately      weigh       the   sentencing             factor      set    out   in   18   U.S.C.

§ 3553(a)(6),        “the         need        to        avoid       unwarranted        sentencing

disparities among defendants with similar records who have been

found     guilty       of     similar             conduct.”           The     district        court

specifically addressed this point at sentencing, however, noting

that     any    disparity         in     sentence         between          Wilkerson    and     his

codefendant      was     based         on    Wilkerson’s            much    higher     CHC,    even

without consideration of the career offender CHC.                                      Thus, the

                                                    7
district   court      clearly   found      warranted         a   certain     degree   of

sentencing disparity between the codefendants, but mitigated the

disparity with its departures.

           Thus, we readily conclude that Wilkerson’s sentence is

both procedurally and substantively reasonable.                       In accordance

with Anders, we have reviewed the entire record in this case and

have   found    no    meritorious    issues       for    appeal.        We   therefore

affirm the judgment of the district court and deny counsel’s

motion to withdraw.         This court requires that counsel inform

Wilkerson,     in    writing,   of   the       right    to   petition      the   Supreme

Court of the United States for further review.                          If Wilkerson

requests that a petition be filed, but counsel believes that

such a petition would be frivolous, then counsel may renew her

motion for leave to withdraw from representation.                            Counsel’s

motion must state that a copy thereof was served on Wilkerson.

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




                                           8
