                  Vacated by Supreme Court, June 21, 2010



                                UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                No. 08-4904


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

BOBBY LEE WATSON,

                    Defendant - Appellant.



Appeal   from  the   United  States  District  Court           for  the
Western District of North Carolina, at Charlotte.              Frank D.
Whitney, District Judge. (3:03-cr-00220-FDW-6)


Submitted:    May 29, 2009                     Decided:     July 7, 2009


Before NIEMEYER, MICHAEL, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Ann L. Hester, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            In a prior appeal, we affirmed the conviction of Bobby

Lee Watson on a charge of possession with intent to distribute

fifty grams or more of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1)      (2006).           We     also       affirmed     the     district     court’s

determination         that        Watson’s       North       Carolina      conviction        for

maintaining a vehicle for the keeping or selling of drugs, in

violation     of      N.C.    Gen.        Stat.       Ann.    §    90-108(a)(7)        (2007),

constituted      a       felony    drug    offense       and      subjected     him    to   the

enhanced penalties under 21 U.S.C.A. § 841(b)(1)(A) (West 1999 &

Supp. 2008).         Although Watson was subject to a maximum sentence

of ten months on this charge based on his criminal history, the

maximum term of imprisonment allowable under the statute was

greater   than       one    year     and    thus      qualified      as    a   prior    felony

conviction.          See United States v. Jones, 195 F.3d 205, 206-07

(4th Cir. 1999) (holding that a prior North Carolina conviction

qualified   as       a    “crime     punishable        by    imprisonment       for    a    term

exceeding one year” if any defendant charged with that offense

could be sentenced to greater than one year of imprisonment);

see also United States v. Harp, 406 F.3d 242 (4th Cir. 2005)

(reaching     same         conclusion        in       context      of     career      offender

enhancement).            However, we found that Watson had only one prior

conviction that qualified as a felony drug offense, rather than

two, and therefore vacated his life sentence and remanded for

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resentencing     within    the   statutory     sentencing      range    of   twenty

years to life.

            On resentencing, the district court imposed a twenty-

year sentence.        Watson now appeals and argues that a recent

decision of the Supreme Court requires a contrary resolution of

the    determination      of     whether     his    North     Carolina       offense

qualifies as a felony drug offense.

            In United States v. Rodriguez, 128 S. Ct. 1783 (2008),

the    Supreme   Court    held    that     “the    phrase    ‘maximum    term    of

imprisonment . . . prescribed by law’ for the ‘offense’ was not

meant to apply to the top sentence in a guidelines range.”                      Id.

at 1792.     Rather, the maximum term of imprisonment was to be

determined based on the maximum set by the recidivist provision

of the statute.       This ruling supports, rather than contradicts,

our decisions in Jones and Harp.

            Because      Rodriguez    does    not    amount     to     controlling

authority that is contrary to this court’s earlier determination

that Watson’s North Carolina conviction was punishable by more

than one year, it does not provide an exception to the law of

the case doctrine.        See United States v. Aramony, 166 F.3d 655,

661 (4th Cir. 1999).           Accordingly, we uphold the determination

that Watson had a prior felony drug conviction, and we affirm

his 240-month sentence.           We deny Watson’s motion for leave to

file   a   pro   se   supplemental       brief.      We     dispense    with    oral

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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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