                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4305


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RITA MARSHAL ONEIL,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.    Terry L. Wooten, Chief District
Judge. (4:10-cr-00203-TLW-7)


Submitted:   September 17, 2013           Decided:   October 10, 2013


Before TRAXLER, Chief Judge, and SHEDD and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Rita Marshal Oneil, Appellant Pro Se.    Carrie Fisher Sherard,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Rita       Marshal     Oneil      pled     guilty    pursuant     to    a   plea

agreement     to     conspiracy          to    distribute      five     grams   or   more    of

cocaine base, in violation of 21 U.S.C. § 846 (2006), and was

sentenced     to     135      months’         imprisonment.        We     vacated     Oneil’s

sentence and remanded for resentencing in light of Dorsey v.

United States, 132 S. Ct. 2321, 2326 (2012) (holding that the

penalty provisions of the Fair Sentencing Act of 2010 (“FSA”),

Pub.   L.    No.     111-220,       124       Stat.    2372,    apply    retroactively       to

defendants who committed their offenses prior to the August 3,

2010   enactment         date      but   were     not    sentenced      until   after     that

date).      On remand, the district court applied the FSA to Oneil,

calculated         her    Guidelines           range    under     the    U.S.     Sentencing

Guidelines Manual (“USSG”) at 135 to 168 months’ imprisonment,

imposed a downward variance, and sentenced her to 121 months’

imprisonment.        Oneil appeals this sentence. *                   We affirm.

              We     review        the    district       court’s      sentence,      “whether

inside, just outside, or significantly outside the Guidelines

range,”      under       a    “deferential            abuse-of-discretion        standard.”

Gall v. United States, 552 U.S. 38, 41 (2007).                           This standard of

review      involves         two   steps;       under    the    first,     we   review      the

       *
       Although we appointed counsel to represent Oneil, Oneil
opted to represent herself on appeal, and counsel was permitted
to withdraw from representation.



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sentence       for     significant         procedural      errors,        and     under     the

second,        we      review        the      substance          of      the       sentence.

United States v.           Pauley,    511     F.3d   468,        473    (4th    Cir.      2007)

(examining Gall, 552 U.S. at 50-51).

               Oneil argues first that the district court erred in

calculating her Guidelines range based on the 100:1 drug weight

ratio     of     powder       cocaine        to   cocaine         base       reflected      in

USSG § 2D1.1, rather than the 18:1 drug weight ratio required by

the   FSA   and      our    order    remanding       the    case       for   resentencing.

After review of the record, we conclude that this contention is

without merit.          At resentencing, the district court employed the

18:1 drug weight ratio in USSG § 2D1.1 in calculating Oneil’s

Guidelines range.

               Next,       Oneil      challenges           the         district      court’s

calculation of the applicable statutory penalties, arguing that

the court erred in concluding that her 2007 South Carolina state

conviction qualified as a predicate felony drug offense under

21 U.S.C.A. § 841(b)(1)(C) (West 2006 & Supp. 2013) and erred in

failing to apply the FSA’s revised statutory penalties to her.

These contentions are also without merit.

               A “felony drug offense” is “punishable by imprisonment

for more than one year under any law of the United States or of

a State . . . that prohibits or restricts conduct relating to

narcotic       drugs.”       21     U.S.C.A.      § 802(44)       (West      Supp.     2013).

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Oneil asserts that her 2007 conviction does not qualify as a

felony   drug       offense      because        it    was    not     punishable         by

imprisonment for a term exceeding one year.                        We conclude after

review of the record that the district court properly determined

that the 2007 conviction was a predicate felony drug offense

under § 841(b)(1)(C).            The conviction was for possession with

intent to distribute cocaine, in violation of S.C. Code Ann.

§ 44-53-370,     and     was    punishable       by    a    term    of   imprisonment

exceeding one year.            The fact that the state sentencing court

exercised its discretion by suspending Oneil’s prison term and

allowing her to serve a year of probation for the conviction is

of no legal significance.               Accord United States v. Williams,

508 F.3d 724, 730 (4th Cir. 2007) (“A state court’s decision to

employ   a   discretionary        alternative         sentencing     scheme     is      not

analogous to a state legislature’s decision to amend the statute

of conviction, because the later may alter the statutory penalty

for the prior offense, while the former cannot.”).

             Because     Oneil’s        2007     conviction        qualifies       as     a

predicate     felony     drug    offense,       the    district      court    properly

determined     at      resentencing       that       the    applicable,        post-FSA

statutory maximum was thirty years’ imprisonment.                        21 U.S.C.A.

§ 841(b)(1)(C).         The     court    also    properly     determined       that      no

mandatory minimum prison term was applicable to Oneil.                       Id.



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            Finally, Oneil argues that the district court erred by

imposing    a     “mandatory         minimum     sentence”         of     121      months’

imprisonment.       We reject this challenge as meritless.                      Under the

FSA, no mandatory minimum prison term was applicable to Oneil,

and, at resentencing, the district court correctly determined

that no mandatory minimum prison term was applicable to her.

The 121-month prison term resulted from the district court’s

imposition of a downward variance from the applicable Guidelines

range, not the application of a mandatory minimum.

            Oneil      fails    to    establish       that    the       district    court

abused     its     discretion        in     imposing        sentence       on      remand.

Accordingly,      we    affirm    the      district     court’s         judgment.      We

dispense    with       oral    argument      because        the    facts    and     legal

contentions      are   adequately         presented    in    the    materials       before

this court and argument would not aid the decisional process.



                                                                                 AFFIRMED




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