                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4113


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

NICHOLAS EMORY STALLARD,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.      James P. Jones, Chief
District Judge. (1:07-cr-00041-jpj-pms-1)


Submitted:    February 18, 2009             Decided:   March 13, 2009


Before TRAXLER, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Nancy C. Dickenson,
Assistant Federal Public Defender, Abingdon, Virginia, for
Appellant.    Julia C. Dudley, Acting United States Attorney,
Jennifer   R.   Bockhorst,  Assistant United States  Attorney,
Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Nicholas Emory Stallard pled guilty to bank robbery,

18   U.S.C.      §§ 2113(a),       2    (2006)    (Count      1),     and       conspiracy    to

commit      bank      robbery     and   to   possess,      conceal,         or     dispose    of

stolen bank funds, 18 U.S.C. §§ 371, 2113(c) (2006) (Count 3).

He     received        a    career      offender         sentence          of     151   months

imprisonment.          U.S. Sentencing Guidelines Manual § 4B1.1 (2007).

Stallard appeals his sentence, arguing that the district court

erred in sentencing him as a career offender and in applying the

2007 Guidelines Manual.              We affirm.

                Stallard previously had been convicted of distributing

cocaine in June 1998 in Carroll County, Virginia, and in January

1999       in   Grayson     County,     Virginia.          He       also    had    a    federal

conviction for possession of a firearm in furtherance of drug

trafficking, 18 U.S.C.A. § 924(c) (West 2000 & Supp. 2008), in

connection           with   the     January       1999     drug       conviction.             At

sentencing, Stallard argued unsuccessfully, based on provisions

in the 2006 Guidelines Manual, that these offenses should be

counted as one offense rather than counted separately. 1                                  Under

§ 4B1.1,        to    qualify     for   sentencing       as     a    career       offender,    a


       1
       Under Application Note 3 to § 4B1.1, “[t]he provisions of
§ 4A1.2 . . . are applicable to the counting of convictions
under § 4B1.1.” Multiple prior sentences are counted separately
unless certain conditions specified in § 4A1.2 are met.



                                              2
defendant must have at least two prior convictions for either a

drug offense or a crime of violence. 2

            The district court noted that it was required to apply

the 2007 guidelines in effect at the time of sentencing, 3 that

§ 4A1.2(a) recently had been amended, 4               and that it currently

provided that prior sentences were counted separately when there

was no intervening arrest “unless (A) the sentences resulted

from offenses contained in the same charging instrument; or (B)

the sentences were imposed on the same day.”                      Stallard’s prior

convictions      did   not     meet   those    conditions.        The   court   also

stated that, even if the issue were determined under the 2006

guidelines, it would not find that the prior convictions were

part of the same course of conduct because they were committed

“in different localities,” and on “widely separate dates,” even

though they “involve[d] the same offense.”

            Although         Stallard    did    not   question      the   district

court’s    use   of    the    2007    Guidelines   Manual    at    sentencing,   he

maintains in this appeal that the court’s application of the


     2
       A § 924(c) conviction is a “crime of violence” if the
underlying offense was a drug offense.    USSG § 4B1.2, comment.
(n.1).   If the defendant was also convicted of the underlying
drug offense (as happened here), the sentences for both prior
convictions are counted as a single sentence. Id.
     3
         See USSG § 1B1.11.
     4
         USSG App. C, amend. 709, eff. Nov. 1, 2007.



                                          3
2007 guidelines violated the Ex Post Facto Clause. 5                        Under USSG

§ 1B1.11(b)(1), to calculate the advisory guideline range, the

sentencing court must apply the Guidelines Manual in effect on

the date of sentencing unless its use would violate the Ex Post

Facto Clause, in which case the Guidelines Manual in effect on

the   date   the   offense      of       conviction      was   committed    is   applied

instead. 6     Because the district court correctly determined that

Stallard would qualify as a career offender under either the

2006 or the 2007 Guidelines Manual, no ex post facto violation

occurred.

             Stallard     was        a    career      offender      under    the   2007

guidelines because the Carroll County cocaine distribution that

he    committed    in   June    1998,       the    federal     § 924(c)     offense   he

committed     in   January      1999,       and    the    Grayson    County      cocaine

distributions he committed in January 1999 were all charged in




       5
       This   issue, and others Stallard raises for the first time
on appeal,     are reviewed for plain error.     United States v.
Olano, 507    U.S. 725, 732-37 (1993).    We are satisfied that no
errors have   been identified in this manner.
       6
       We note that a circuit split has developed on the issue of
whether, after United States v. Booker, 543 U.S. 220 (2005), the
Ex Post Facto Clause no longer applies to the sentencing
guidelines because they are now advisory.     This court has not
decided the issue as yet. See United States v. Myers, 553 F.3d
328, 333 n.2 (4th Cir. 2009). We conclude that the issue need
not be addressed in this case.



                                             4
separate indictments, and all three sentences were imposed on

different dates.

                 Stallard   did   not     challenge      the   accuracy         of   his

criminal record in the district court, but he argues on appeal

that       the   government   failed      to   prove    that   he    was    a    career

offender because it did not introduce the charging documents for

the predicate offenses.            This claim is meritless.                First, the

hearsay      rule    does   not   apply   at   sentencing.          USSG   § 6A1.3(a)

(sentencing         court   may   consider     any     relevant     information      to

resolve disputes, “provided that the information has sufficient

indicia of reliability to support its probable accuracy”), and

the testimony given by the state investigator for the government

at   sentencing       was   not   erroneous     in   any   significant       respect.

Second, Stallard’s reliance on Shepard v. United States, 544

U.S. 13 (2005), and its progeny is misplaced. 7                     Shepard and the

cases stemming from it have limited, if any, relevance in this

case because there was no dispute about the nature of Stallard’s

prior convictions, only the number countable under § 4A1.2.


       7
         Shepard held that, in deciding whether a prior guilty
plea was to a violent felony rather than a non-violent offense,
the district court could consider only “the terms of the
charging document, the terms of a plea agreement or transcript
of colloquy between judge and defendant in which the factual
basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information.”   544 U.S. at
26.



                                           5
               Stallard’s           principal        argument        is      that,        under

Application Note 3 of the 2006 Guidelines Manual, the predicate

convictions for his career offender status were related cases

and should have been treated as one offense under the test set

out in United States v. Breckenridge, 93 F.3d 132 (4th Cir.

1996), for determining whether prior offenses were part of a

“single common scheme or plan.”                      To be a career offender under

USSG § 4B1.1, a defendant must have two predicate convictions

which are counted separately under USSG § 4A1.1.                             To determine

which    of     a    defendant’s       prior    felony      convictions       are    counted

separately, the 2006 guidelines direct a sentencing court to

look to the provisions of § 4A1.2, which treat prior sentences

in “related cases” as a single sentence.                           USSG § 4A1.2(a)(2).

Application Note 3 to § 4A1.2 explains:                          “[p]rior sentences are

considered          related    if    they   resulted        from    offenses        that   (1)

occurred on the same occasion, (2) were part of a single common

scheme     or       plan,      or    (3)    were      consolidated         for   trial      or

sentencing.”          We have considered these factors and conclude that

the district court did not err in finding that Stallard’s prior

offenses were not part of a common scheme or plan.

               We     therefore       affirm        the   sentence        imposed    by    the

district      court.          We    dispense    with      oral    argument    because      the

facts    and     legal      contentions        are    adequately     presented        in   the



                                                6
materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




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