                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4788



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


BOBBY LEE WATSON,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (3:03-cr-00220-6)


Submitted:   July 2, 2007                   Decided:   July 24, 2007


Before NIEMEYER, MICHAEL, and KING, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Cecilia Oseguera, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Gretchen C.F.
Shappert, United States Attorney, Thomas Cullen, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Bobby    Lee    Watson   appeals    from     his    conviction     for

possession with intent to distribute a quantity of cocaine base

(crack), and the life sentence imposed.              For the reasons that

follow, we affirm Watson’s conviction but vacate his sentence and

remand for resentencing.

          Watson   was     indicted   and    charged   with    one   count    of

conspiracy to distribute cocaine base, cocaine, and marijuana, in

violation of 21 U.S.C. §§ 841(a)(1), 846 (2000), and one count of

possession with intent to distribute fifty grams or more of cocaine

base, in violation of 21 U.S.C. § 841.            The government filed a

notice to seek enhanced penalties pursuant to 21 U.S.C. § 851

(2000), based on Watson’s convictions in November 1997 of two

counts of maintaining a vehicle for the keeping of drugs, in

violation of N.C. Gen. Stat. Ann. § 90-108(a)(7) (West 2006).

          Following a jury trial, Watson was adjudged guilty of the

possession with intent to distribute charge, and acquitted on the

conspiracy charge.       At sentencing, Watson objected to the use of

his North Carolina convictions to enhance his sentence under § 841,

contending that they did not qualify as prior convictions for a

felony drug offense and also that those convictions were part of

the same transaction and therefore could only count as one prior

conviction.   The district court rejected these arguments and

sentenced Watson to a mandatory life sentence.


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          Watson first argues that the district court erred by

admitting evidence that he did not file federal or state tax

returns for the years 1998 through 2003.   Watson asserts that his

failure to file tax returns from 1998 to 2001 was irrelevant,

because this conduct preceded the time period alleged in the

indictment. He further asserts that the evidence of his failure to

file income tax returns during the period of the alleged conspiracy

was unduly prejudicial under Fed. R. Evid. 403 and 404(b).

          The government introduced the certifications along with

evidence that Watson owned three Cadillacs registered in his name,

as proof of “unexplained wealth,” which amounted to circumstantial

evidence of possible illegal activity. This evidence was therefore

probative of whether Watson was involved in the drug conspiracy

charged in the indictment.    See United States v. Grandison, 783

F.2d 1152, 1156 (4th Cir. 1986); United States v. Penny, 60 F.3d

1257, 1263 (7th Cir. 1995).   We find no abuse of discretion by the

district court in determining that the evidence of Watson’s failure

to file tax returns——both before and during the time of the alleged

conspiracy—was admissible.    See United States v. Rivera, 412 F.3d

562, 571 (4th Cir. 2005) (providing standard).

          Watson next contends that his sentence was improperly

enhanced based on prior convictions, which were not alleged in the

indictment and found by a jury beyond a reasonable doubt.       As

Watson acknowledges, this argument is foreclosed by Almendarez-


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Torres v. United States, 523 U.S. 224 (1998), and Shepard v. United

States, 544 U.S. 13 (2005).            See United States v. Thompson, 421

F.3d 278, 282 (4th Cir. 2005), cert. denied, 126 S. Ct. 1463

(2006); United States v. Cheek, 415 F.3d 349, 352 (4th Cir.), cert.

denied, 126 S. Ct. 640 (2005).

            Watson also argues that the district court incorrectly

determined that his two prior state convictions for maintaining a

vehicle for the keeping or selling of drugs, in violation of N.C.

Gen. Stat. Ann. § 90-108(a)(7), constituted a felony drug offense

and   subjected   him    to     the   enhanced   penalties   under    21   U.S.C.

§ 841(b)(1)(A).       Watson contends that his offenses were not felony

offenses because the maximum sentence he faced on these charges was

ten months’ imprisonment.

            In United States v. Jones, 195 F.3d 205, 206-07 (4th Cir.

1999), this court held that a prior North Carolina conviction

qualified   as    a    “crime    punishable    by   imprisonment   for     a   term

exceeding one year” if any defendant charged with that offense

could be sentenced to greater than one year of imprisonment.                    See

United States v. Harp, 406 F.3d 242, 246-47 (4th Cir. 2005)

(reaching    same      conclusion      in     context   of   career      offender

enhancement).         Watson urges this court not to follow Harp and

Jones, but rather to adopt the rationale of the Tenth Circuit,

which concluded that the relevant inquiry is the maximum sentence

the particular defendant could receive, not the maximum aggravated


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sentence any defendant could receive. United States v. Plakio, 433

F.3d 692, 697 (10th Cir. 2005).       We decline to adopt this contrary

rationale.    See United States v. Chong, 285 F.3d 343, 346 (4th Cir.

2002) (one panel of this court cannot overrule another).         Thus, we

uphold the district court’s conclusion that Watson’s North Carolina

conviction qualified as a prior felony drug offense because any

defendant charged with that crime could receive a sentence of more

than one year.

             Lastly, Watson contends that the district court erred in

finding that his prior state convictions constituted two separate

felony   drug    offenses   under   21   U.S.C.   §   841(b)(1)(A),   thus

subjecting him to a mandatory life sentence.          He argues that the

maintaining of a vehicle is a continuing offense under North

Carolina law and therefore the charges of maintaining a vehicle in

December 1996 and in January 1997 were part of a single criminal

episode. The Government concedes this issue, agreeing that the two

offenses should be counted as a single offense.

             We agree.   Section 90-108(a)(7) prohibits the “keep[ing]

or maintain[ing of] any . . . vehicle . . . which is resorted to by

persons using controlled substances . . . , or which is used for

the keeping or selling of [controlled substances].”            The North

Carolina Supreme Court held that “this statute does not prohibit

the mere temporary possession of marijuana within a vehicle” but

rather prohibits the “possession that occurs over a duration of


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time.”   State v. Mitchell, 442 S.E.2d 24, 32 (N.C. 1994); see State

v.   Frazier,    542   S.E.2d   682,    686    (N.C.   App.   2001)    (requiring

possession over a duration of time for conviction under § 90-

108(a)(7)). Absent evidence “indicating termination and subsequent

resumption”      of    the   illegal     activity,     multiple       charges   or

convictions of maintaining a place to keep controlled substances

should be counted as one criminal episode.               State v. Grady, 524

S.E.2d 75, 79 (N.C. App. 2000).

           As the parties note, there is no evidence that Watson’s

maintaining of the vehicle for the purpose of keeping or selling

drugs on December 19, 1996, was a separate offense from the conduct

of keeping or maintaining a vehicle for that purpose on January 13,

1997.    There was no intervening arrest and no evidence of Watson

having terminated and then resumed that conduct between the two

dates charged.        Accordingly, we find that the two charges should

count as only one prior conviction for a felony drug offense,

rather than two, and Watson’s statutory sentencing range should

“not be less than 20 years and not more than life imprisonment.”

21 U.S.C. § 841(b)(1)(A).          Accordingly, we vacate Watson’s life

sentence   and    remand     for   resentencing        within   the     statutory

sentencing range of twenty years to life.

           In conclusion, although we affirm Watson’s conviction, we

vacate his sentence and remand for resentencing based on one,

rather than two, prior convictions for a felony drug offense.


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Additionally, we deny Watson’s motions for substitution of counsel

for this appeal and to place the appeal in abeyance until new

counsel files a new or supplemental brief.   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 IN PART,
                                      VACATED IN PART, AND REMANDED




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