UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 97-4492

DONALD SCOTT SPANN,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Salisbury.
William L. Osteen, Sr., District Judge.
(CR-96-242)

Submitted: March 31, 1998

Decided: June 22, 1998

Before MURNAGHAN, WILKINS, and LUTTIG,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Benjamin David Porter, MORROW, ALEXANDER, TASH &
LONG, Winston-Salem, North Carolina, for Appellant. Walter C.
Holton, Jr., United States Attorney, Sandra J. Hairston, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Donald Scott Spann pled guilty to bank robbery, 18 U.S.C.A.
§ 2113(a) (West Supp. 1998), and was sentenced as a career offender
to a term of 160 months imprisonment. See U.S. Sentencing Guide-
lines Manual § 4B1.1 (1995). Spann appeals his sentence, asserting
that the district court erred in finding that two of his predicate felony
convictions were "punishable by imprisonment for a term exceeding
one year." See USSG § 4B1.2(1). We affirm.

A defendant is a career offender if he is at least eighteen years old
at the time of the instant offense, the instant offense is a crime of vio-
lence or a drug offense, and he has at least two prior felony convic-
tions for either a crime of violence or a drug offense. See USSG
§ 4B1.1. Under the federal sentencing guidelines, a prior felony con-
viction is defined as a conviction of any federal or state offense pun-
ishable by a term of imprisonment exceeding one year, regardless of
whether the offense is designated as a felony and regardless of the
sentence actually imposed. See USSG #8E8E # 4A1.2, comment. (n.3),
4B1.1(1). Spann had prior state convictions for assault with a deadly
weapon and assault on a female--offenses which at the time were
punishable by imprisonment of up to two years.*

Spann argues that the assault convictions were not punishable by
a term exceeding one year because, with good time credits, a defen-
_________________________________________________________________
*Spann's convictions took place in 1989 and 1993. In 1994, the North
Carolina legislature reduced the maximum sentence for these offenses to
150 days. See United States v. Johnson, 114 F.3d 435, 445 (4th Cir.),
cert. denied, ___ U.S. ___, 66 U.S.L.W. 3262 (U.S. Oct. 6, 1997) (No.
97-5705). Spann also had prior convictions for breaking and entering a
residence on at least four occasions; these charges were consolidated for
judgment and counted as one prior sentence. See USSG § 4A1.2(a)(2) &
comment, (n.3).

                     2
dant who was subject to the maximum two-year sentence could serve
less than one year unless he committed major infractions while in cus-
tody. However, the guideline plainly defines a felony in terms of the
statutory maximum sentence rather than the amount of time served.
See United States v. Raynor, 939 F.2d 191, 194-95 (4th Cir. 1991)
(misdemeanor carrying two-year maximum sentence properly treated
as felony in federal sentencing); see also United States v. Johnson,
114 F.3d 435, 444-45 (4th Cir.) (pre-1994 North Carolina conviction
for assault on female exposed defendant to imprisonment of more
than a year), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3262 (U.S. Oct.
6, 1997) (No. 97-5705). Therefore, we find that Spann was correctly
sentenced as a career offender.

Accordingly, the sentence is affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

                    3
