             Vacated by Supreme Court, October 4, 2010



                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4762


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

XAVIER ANTWONE BLACKWOOD,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00258-WO-1)


Submitted:   February 25, 2010            Decided:   March 2, 2010


Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Louis C. Allen III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant.    Terry Michael Meinecke, Assistant
United   States  Attorney,  Greensboro,  North  Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Xavier     Antwone     Blackwood    pled      guilty          pursuant    to    a

written plea agreement to maintaining drug-involved premises, 21

U.S.C.   § 856(a)(1),       (b)   (2006),   and     possession           of   a    firearm

after having previously been convicted of a crime punishable by

imprisonment    for     a     term   exceeding          one        year,      18    U.S.C.

§§ 922(g)(1),       924(a)(2)     (2006).         The    Government            filed      an

Information    of    Prior    Conviction    pursuant          to    21     U.S.C.    § 851

(2006), stating that Blackwood committed the subject offenses

after a prior state felony drug conviction for possession with

intent to sell and deliver cocaine (two counts) became final.

Blackwood was sentenced to 85 months’ imprisonment.                           On appeal,

counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), stating in his view there are no meritorious

issues for appeal, but questioning whether the district court

erred in finding Blackwood’s prior drug conviction for which

Blackwood received a sentence of six to eight months “a crime

punishable by imprisonment for a term exceeding one year” under

18 U.S.C. § 922(g).         Blackwood was notified of his right to file

a pro se supplemental brief but has not done so.                              Finding no

error, we affirm.

           Blackwood        argues   that     his   prior          state      conviction

cannot serve as a predicate offense under 18 U.S.C. § 922(g)

because, under the North Carolina Fair Sentencing Act, he was

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subject to less than one year of imprisonment for the prior

conviction.           However,         as      counsel     concedes,     this     argument      is

foreclosed by our decision in United States v. Harp, 406 F.3d

242,     246-47       (4th          Cir.       2005)    (determining         satisfaction      of

recidivist          guideline          requirement        that      prior     conviction       was

punishable by term exceeding one year depends on “the maximum

aggravated sentence that could be imposed for that crime upon a

defendant with the worst possible criminal history”); see also

United    States          v.    Rodriguez,        128    S.   Ct.    1783,    1787-93      (2008)

(defining phrase “maximum term of imprisonment” in 18 U.S.C.

§ 924(e)       (2006)          as   maximum      term    permitted      by    state      statute,

including recidivist provisions).                         Because the prior conviction

at     issue        was        clearly      punishable         by   a    maximum       term    of

imprisonment exceeding one year, we conclude the district court

did    not     err        in    considering        it     a   predicate       conviction       for

purposes of 18 U.S.C. § 922(g).

               In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.      Accordingly,            we    affirm       the   judgment      of   the     district

court.       This court requires that counsel inform his client, in

writing,       of    his       right      to    petition      the   Supreme      Court    of   the

United States for further review.                        If the client requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move this court for leave

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to withdraw from representation.             Counsel’s motion must state

that a copy thereof was served on the client.               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 in the decisional process.

                                                                    AFFIRMED




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