                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4352



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ARTHUR MEMMINGER,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-03-709)


Submitted:   July 29, 2005                 Decided:   August 24, 2005


Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis H. Lang, CALLISON TIGHE & ROBINSON, L.L.C., Columbia, South
Carolina, for Appellant. Jonathan S. Gasser, Acting United States
Attorney, John C. Duane, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Pursuant to a plea agreement, Arthur Lee Memminger pled

guilty to possession with intent to distribute five grams or more

of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (2000).

The district court sentenced Memminger to an enhanced sentence of

120 months of imprisonment based upon his prior convictions for

felony drug offenses.         See 21 U.S.C.A. §§ 802(44), 841(b)(1)(B)

(West    1999   &   Supp.   2005).    Memminger     appeals   his   sentence,

asserting that the district court erred in concluding that his

prior    convictions    were    felony    drug    offenses,   and   that   his

constitutional rights were violated because the prior convictions

were not alleged in the indictment.              He does not challenge his

conviction on appeal.        We affirm.

            Because Memminger did not raise the sentencing issues in

the district court, we review for plain error.                Fed. R. Crim.

P. 52(b); United States v. Hughes, 401 F.3d 540, 547 (4th Cir.

2005).    To demonstrate plain error, Memminger must establish that

error occurred, that it was plain, and that it affected his

substantial rights.         Id. at 547-48.       If a defendant establishes

these requirements, our “discretion is appropriately exercised only

when failure to do so would result in a miscarriage of justice,

such as when the defendant is actually innocent or the error

seriously affects the fairness, integrity or public reputation of




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judicial proceedings.”            Id. at 555 (internal quotation marks and

citation omitted).

            Memminger asserts that the district court plainly erred

in   concluding     that    the    predicate   offenses      set    forth     in   the

information filed pursuant to 21 U.S.C. § 851 (2000) qualified as

felony drug offenses for purposes of imposing an enhanced sentence

under § 841(b)(1)(B).          We disagree.    Memminger had three predicate

offenses,    each   of     which    involved   possession     of     a    controlled

substance.     Under South Carolina law, a subsequent possession

offense is classified as a felony punishable by not more than five

years of imprisonment.          See S.C. Code Ann. §§ 44-53-370(c), (d)(1)

(Law. Co-op. 2002 & Supp. 2004); id. § 44-53-470 (Law. Co-op. 2002)

(defining second or subsequent offense).*              Because the predicate

offenses     satisfy     the    definition     of   felony    drug       offense    in

§ 802(44), we find that there was no error — plain or otherwise —

in the district court’s imposition of the ten-year statutory

mandatory minimum sentence.            See United States v. Pinckney, 938

F.2d 519, 522 (4th Cir. 1991) (holding that defendant’s conviction

for possession of marijuana with intent to distribute, which was

classified as a misdemeanor under South Carolina law, was properly

deemed a felony for career offender purposes because offense was

punishable by up to five years imprisonment).



      *
      These sections were amended after the                        district    court
sentenced Memminger. See 2005 S.C. Acts 127.

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            Memminger also contends that the district court plainly

erred in relying on the predicate offenses to sentence him to a

statutory mandatory minimum sentence because the offenses were not

charged in the indictment.       His argument is foreclosed by our

recent decision in United States v. Cheek, 415 F.3d 349 (4th Cir.

2005) (holding that Sixth Amendment not violated when sentence

enhanced based on prior convictions that were not charged in

indictment or admitted by defendant).

            Accordingly,   we   affirm   Memminger’s   conviction   and

sentence.    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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