                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4398


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JEFFREY TATE DAVIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:11-cr-00227-BO-1)


Submitted:   November 7, 2012              Decided:   November 14, 2012


Before KING and    SHEDD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Thomas G. Walker, United States Attorney, Jennifer
P. May-Parker, Joshua L. Rogers, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Jeffrey Tate Davis seeks to appeal his conviction for

being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g) (2006), and his eighty-seven-month sentence.                      We

affirm.

              Davis first challenges the district court’s denial of

his motion to withdraw his guilty plea.                    The district court’s

denial of a motion to withdraw a guilty plea is reviewed for

abuse of discretion.            United States v. Ubakanma, 215 F.3d 421,

424 (4th Cir. 2000).            “[A] defendant does not have an absolute

right    to    withdraw     a   guilty     plea,    even    before      sentencing.”

United    States      v.   Moore,   931    F.2d    245,   248   (4th    Cir.   1991).

Instead, he must show “that a fair and just reason supports his

request to withdraw.”            Id.      (internal quotation marks omitted;

discussing factors to be considered by court).

              Davis    contends     that    the    district     court    abused   its

discretion in denying his motion to withdraw his guilty plea

because he possesses no valid predicate felony conviction to

serve as the basis for the instant offense.                   Specifically, Davis

argues that his 2002 federal felony conviction cannot serve as

the basis for the instant offense because it was predicated on

prior state court convictions resulting in a sentence of less

than one year of imprisonment and, thus, is facially invalid in

light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011)

                                           2
(en banc).        Further, Davis claims that his 2007 state felony

conviction cannot serve as a predicate for the instant offense

because the only reason that he received a sentence of more than

one   year   of    imprisonment       was       due    to    the     inclusion     of   the

allegedly    invalid      2002   conviction           in    the    calculation     of   his

prior record level.

             Davis is mistaken.         This court squarely rejected this

line of argument in United States v. Kahoe, 134 F.3d 1230 (4th

Cir. 1998), holding that any subsequently-realized invalidity of

a predicate felony conviction is immaterial to a § 922(g)(1)

prosecution, as long as the prior conviction was in effect on

the date that the defendant possessed the firearm.                          Id. at 1235.

In this case, there is no dispute that Davis’s 2002 federal

felony conviction and 2007 state felony conviction were both in

effect on April 15, 2011, when Davis possessed the firearm that

is the subject of his current § 922(g)(1) conviction, and that

he received sentences exceeding one year on each of these prior

convictions.         As     a    result,         Davis’s          current    § 922(g)(1)

conviction is proper, notwithstanding the possible effects of

Simmons on his previous convictions.                       We have reviewed Davis’s

other   contentions       with   respect        to    the    Moore     factors,    and we

conclude that Davis’s plea was knowing and voluntary and that he

was   adequately     advised     by   competent             counsel.        We   therefore



                                            3
affirm the district court’s denial of Davis’s motion to withdraw

the plea.

            Davis       also    challenges         the      reasonableness       of    his

eighty-seven-month sentence.             This court reviews a sentence for

reasonableness,         applying      “an        abuse-of-discretion         standard.”

Gall v. United States, 552 U.S. 38, 51 (2007).                         We “must first

ensure     that    the    district       court          committed     no    significant

procedural error.”          Id.     If no procedural error was committed,

we review the sentence for substantive reasonableness, “tak[ing]

into    account    the    totality      of       the    circumstances.”          Id.     A

sentence    that    falls      within   a        properly    calculated      Guidelines

range is presumptively reasonable on appeal, and the defendant

bears the burden to “rebut the presumption by demonstrating that

the    sentence    is    unreasonable        when       measured    against      the   [18

U.S.C.] § 3553(a) [(2006)] factors.”                      United States v. Montes-

Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation

marks omitted).

            Here, the district court sentenced Davis to eighty-

seven months’ imprisonment, within his Guidelines range.                               We

have reviewed the contentions raised on appeal and conclude that

Davis has not met his burden of establishing that his within-

Guidelines sentence was unreasonable when measured against the

§ 3553(a)    factors.          We   therefore          conclude    that    the   district

court did not abuse its discretion in sentencing Davis.

                                             4
           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 the

court and argument would not aid the decisional process.

                                                                  AFFIRMED




                                    5
