                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 05-4676


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

SHON EDWARD MEEKS, a/k/a Lashon Edward Meeks, a/k/a Lashawn
Edward Meeks, a/k/a Teddy,

                  Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
Senior District Judge. (CR-04-466)


Submitted:    November 30, 2009            Decided:   December 17, 2009


Before MICHAEL, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James D. Williams, Jr., Durham, North Carolina, for Appellant.
Sandra   Jane  Hairston,   Assistant   United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Shon Edward Meeks was convicted, pursuant to a guilty

plea, to one count of distributing cocaine base, in violation of

21 U.S.C. § 841(a)(1), (b)(1)(A) (2006).                        He was sentenced to

262    months       in   prison,      at     the   low    end    of   the      Sentencing

Guidelines      range,     and     ten     years   of    supervised      release.       He

appeals his conviction and sentence.                     His counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967).

Although informed of his right to do so, Meeks did not file a

pro se supplemental brief.                 The Government elected not to file a

brief. 1     Finding no error, we affirm.

              Meeks was indicted based on his sale of 121.9 grams of

cocaine      base    (crack)     to      two   undercover       agents    of    the   Drug

Enforcement Agency and a confidential informant.                         At the time he

entered his guilty plea, Meeks was 27 years old and he had a

GED.       He had considerable experience with the criminal justice

system, albeit in state court, including several guilty pleas to

felony charges.           He was not under the influence of drugs or

alcohol at the time of the plea hearing.                         The district court

explained the charge, informed Meeks of the minimum and maximum


       1
       Although Meeks waived his right to appeal in his plea
agreement, the Government has not sought to dismiss the appeal
based on the waiver.    Thus, the waiver will not be enforced.
United States v. Brock, 211 F.3d 88, 90 n.1 (4th Cir. 2000).



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terms of imprisonment, and ensured that Meeks’s plea was not

obtained through threats or promises.                        The court explained the

rights Meeks was forgoing by pleading guilty, including trial by

jury, confrontation and cross-examination of witnesses, and the

like.       There is nothing in the record to suggest that Meeks’s

guilty plea was not knowing and voluntary.

                 Meeks’s base offense level, based on the quantity of

drugs       he    sold,   was    32    under    the    version      of    the       Sentencing

Guidelines then in effect. 2                U.S. Sentencing Guidelines Manual

§ 2D1.1(c)(4) (2004).                 However, his extensive criminal history

established         Meeks   as    a    career       offender,      setting      his    offense

level       at     37.      USSG       § 4B1.1.            After    an     acceptance       of

responsibility adjustment, Meeks’s final adjusted offense level

was 34.          His criminal history category was VI.                   This calculation

resulted in an advisory Guidelines range of 262 to 327 months’

imprisonment.             Meeks’s      offense       was    subject      to    a    statutory

mandatory         minimum   sentence      of     twenty     years,       and    a    statutory

maximum of life imprisonment.




        2
       The Sentencing Guidelines pertaining to crack cocaine were
lowered after Meeks was sentenced. See USSG App. C Amend. 706.
The appropriate avenue for seeking a reduced sentence in light
of Amendment 706 is a motion for a reduction of sentence
pursuant to 18 U.S.C. § 3582 (2006).       See United States v.
Brewer, 520 F.3d 367, 368 n.1 (4th Cir. 2008).     We express no
opinion about the possible merit of any such motion.



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             At sentencing, the district court adopted the factual

findings and recommendations in the Presentence Report.                           The

court   acknowledged       that   the       Guidelines       were   not     binding.

Although it did not specifically list each sentencing factor set

forth   in   18   U.S.C.   § 3553(a)        (2006),    the    court   pointed      to

Meeks’s lengthy criminal history, from his first of several drug

convictions at the age of 16, to a firearms conviction, to the

repeated revocations of his terms of supervised release.                         The

court stated that “it’s been difficult obviously for the courts

to get the defendant’s attention.”               The court recognized that

the Guidelines range was “extensive,” and imposed a sentence at

the low end of that range.         The court further explained that it

was imposing a long sentence because “I think it’s fair to you,

fair to the government and to the public, and it is a reasonable

sentence under the circumstances.”              This explanation provides a

rationale tailored to Meeks’s case and is sufficient to show

that the district court conducted the sort of individualized

sentencing     analysis    required     under        the   relevant       case   law,

including Gall v. United States, 552 U.S. 38, 46 (2007), United

States v. Rita, 551 U.S. 338, 346-47 (2007), and United States

v. Carter, 564 F.3d 325, 330 (4th Cir. 2009).

             Meeks’s   counsel    raises       two     challenges     related      to

sentencing in his Anders brief.             First, counsel asserts that the

prosecutor abused her discretion in seeking an enhanced sentence

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pursuant to 21 U.S.C. § 851 (2006).                             However, the prosecutor

agreed       not    to    file    a    § 851    notice     as    part     of    Meeks’s      plea

agreement.          To the extent Meeks is challenging the prosecutor’s

use     of    his        prior    convictions        to     increase       the       applicable

statutory          mandatory      minimum       sentence        pursuant       to    21    U.S.C.

§ 841,       it     is    well    settled       that      the    prosecutor          has     broad

discretion         over    whom       to   prosecute      and    what   charges       to    file.

United States v. Armstrong, 517 U.S. 456, 464 (1996).                                       “‘[I]n

the absence of clear evidence to the contrary, courts presume

that     [prosecutors]           have      properly       discharged       their          official

duties.’”           Id. (quoting United States v. Chemical Foundation,

Inc.,    272       U.S.    1,     14-15     (1926)).        Meeks       had     an    extensive

criminal history, and there was nothing improper about seeking

the     statutorily         prescribed         increased        penalty    based       on    that

history.

               Next, Meeks’s claim that his prior convictions should

have been alleged in the indictment is clearly foreclosed by

this Circuit’s precedent.                  United States v. Cheek, 415 F.3d 349,

354 (4th Cir. 2005) (reaffirming validity of Almendarez-Torres

v. United States, 523 U.S. 224 (1998)).                             “[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

                                                 5
quotation      marks      and    citation        omitted).             Thus,       this      claim

warrants no relief.

            Finally, after the district court imposed sentence on

Meeks, the Supreme Court held, in Kimbrough v. United States,

552 U.S. 85 (2007), that the district court could deviate from

the Guidelines’ 100-to-1 crack cocaine to powder cocaine ratio

when imposing sentence.             Meeks did not raise a Kimbrough claim

in the district court or on appeal.                          Nevertheless, in accord

with our duty under Anders, we have considered whether Kimbrough

might   affect       Meeks’s     sentence,       and    we    conclude        it     does    not.

There is nothing in the record suggesting the district court

would   have    imposed     a    lower     sentence          if   it    knew    it     had       the

authority      to    do    so.         Moreover,       Kimbrough         is     of     no     real

assistance      to     Meeks     because     his       Guidelines         range        was       not

ultimately determined based on drug quantity, but rather was

based on his status as a career offender.                         See United States v.

Ogman, 535 F.3d 108, 109 (2d Cir. 2008) (clarifying that when “a

district court sentences a defendant pursuant to a Guidelines

range that results from his status as a career offender, and

without reliance upon the Guidelines’ drug quantity table and

the crack powder ratio that it incorporates, the sentence does

not   present       the   type    of    error     for    which         remand      .   .     .    is

appropriate”); United States v. Jimenez, 512 F.3d 1, 8-9 (1st

Cir. 2007) (“As we have explained, the crack/powder dichotomy is

                                             6
irrelevant to the career offender sentence actually imposed in

this case.      Consequently, the decision in Kimbrough . . . is of

only academic interest here.”).

            As required by Anders, we have reviewed the entire

record    and    have    found       no   meritorious        issues       for    appeal.

Therefore,      we   affirm    Meeks’s    conviction     and     sentence.          This

court requires that counsel inform his client, in writing, of

his right to petition the Supreme Court of the United States for

further   review.       If     the   client   requests       that     a   petition      be

filed,    but    counsel      believes    that   such    a    petition          would   be

frivolous, then counsel may move in this court for leave to

withdraw from representation.             Counsel’s motion must state that

a copy thereof was served on the client.                 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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