                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4472



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


DERON FITZGERALD JONES,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (1:05-cr-00076-jpj)


Submitted:   February 28, 2008            Decided:   March 19, 2008


Before MOTZ, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas R. Scott, Jr., STREET LAW FIRM, LLP, Grundy, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Zachary T.
Lee, Assistant United States Attorney, Abingdon, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Deron Fitzgerald Jones was convicted of participating in

a conspiracy to possess with intent to distribute and distribute

fifty grams or more of cocaine base (crack) (Count One), 21 U.S.C.

§ 846 (2000), as well as distribution of five grams of crack (Count

Two), fifty grams of crack (Count Three), and an unspecified amount

of crack (Count Four), all in violation of 21 U.S.C.A. § 841(a),

(b) (West 1999 & Supp. 2007).        Before trial, the government filed

an information pursuant to 21 U.S.C. § 851 (2000), stating that

Jones   had    two   prior   North   Carolina      convictions   for    felony

possession of cocaine, each in violation of N.C. Gen. Stat. § 90-

95(d)(2) (LexisNexis 2007).       Jones was sentenced to the statutory

minimum sentence of life imprisonment that applied on Counts One

and Three under § 841(b)(1)(A), and to a concurrent statutory

minimum     ten-year   sentence      on   Counts    Two   and    Four    under

§ 841(b)(1)(B).        He appeals his sentence, arguing on various

grounds that the mandatory life sentence was wrongly applied.              For

the reasons explained below, we affirm.

            Jones first argues that his prior predicate convictions

were for offenses that were not punishable by imprisonment for more

than one year, and thus did not subject him to a mandatory life

sentence.     As Jones acknowledges, this claim is reviewed for plain

error because he did not raise it in the district court.                United

States v. Olano, 507 U.S. 725, 732-37 (1993).


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            Jones’ predicate North Carolina drug convictions were

both Class I felonies under North Carolina law.              Jones argues that

neither of the convictions qualifies as a             “felony drug offense”

within the meaning of 21 U.S.C.A. § 802(44) (West Supp. 2007)

because, absent aggravating factors which were not found in his

cases, the maximum sentence he could have received was eight months

in the first case and ten months in the second case.               However, the

maximum    potential    sentence    for    any    North   Carolina   defendant

convicted of a Class I felony is fifteen months.              N.C. Gen. Stat.

§ 15A-1340.17(d) (LexisNexis 2007).                Jones’ argument is thus

foreclosed by our decision in United States v. Harp, 406 F.3d 242

(4th Cir. 2005).     In Harp, we declined, as we did in United States

v. Jones, 195 F.3d 205 (4th Cir. 1999), to apply an “individualized

analysis,” and held that, “to determine whether a conviction is a

crime   punishable     by   a   prison   term    exceeding   one   year,   Jones

dictates that we consider the maximum aggravated sentence that

could be imposed for that crime upon a defendant with the worst

possible criminal history.”         Harp, 406 F.3d at 246.

            Jones suggests that Jones and Harp were wrongly decided.

However, Harp is controlling law because one panel may not overrule

another.   United States v. Simms, 441 F.3d 313, 318 (4th Cir.) (“A

decision of a panel of this court becomes the law of the circuit

and is binding on other panels unless it is overruled by a

subsequent en banc opinion of this court or a superseding contrary


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decision of the Supreme Court.” (internal quotation omitted)),

cert. denied, 127 S. Ct. 233 (2006).              Under Harp, the district

court did not err, much less plainly err, in treating the predicate

offenses identified in the § 851 motion as felony drug offenses

that qualified Jones for a statutorily enhanced sentence.

           Next, Jones maintains that §§ 841(b)(1)(A) and (b)(1)(B)

create crimes separate from the offenses set out in § 841(a),

rather than penalties for those offenses.            Jones argues that the

prior convictions which subjected him to a mandatory life sentence

are elements of the aggravated offense for which he was sentenced.

Relying on Jones v. United States, 526 U.S. 227, 232 (1999), and

Apprendi v. New Jersey, 530 U.S. 466 (2000), that elements of an

offense must be charged in the indictment and proved beyond a

reasonable      doubt,   Jones   contends    that,     because      his   prior

convictions were not charged in the indictment or proved beyond a

reasonable doubt, the district court erred in imposing an enhanced

sentence   of    life    imprisonment.      The    district    court’s    legal

conclusions,     including    its   interpretation     of     the   sentencing

guidelines, are reviewed de novo. United States v. Allen, 491 F.3d

178, 193 (4th Cir. 2007).

           Jones’ claim fails because Apprendi specifically excepted

prior convictions from its holding. See Apprendi, 530 U.S. at 490.

We agree with the district court that, after Apprendi –

     [W]hether a statute characterizes a fact as an offense
     element or a sentencing factor is largely irrelevant,

                                    - 4 -
     because the practical effect is the same; the fact must
     be submitted to the jury if it increases the penalty for
     a crime beyond the prescribed statutory maximum.
     However, this analysis is inoperative in the context of
     a prior conviction.    See Almendarez-Torres v. United
     States, 523 U.S. 224, 245-47 (1998). Such a fact need
     only be submitted to the jury when Congress has
     specifically defined prior convictions as an element of
     the offense.

          Moreover,        Apprendi’s       exception     for     sentencing

enhancements based on prior convictions was reaffirmed in United

States v. Booker, 543 U.S. 220 (2005).          See United States v. Cheek,

415 F.3d 349, 352 (4th Cir. 2005).

          Jones argues that Almendarez-Torres has been effectively

overruled by Apprendi.       However, Almendarez-Torres has not been

overruled and may not be ignored.            Cheek, 415 F.3d at 352-53.

Morever, the Supreme Court has also held that a mandatory minimum

sentence may be increased based on judge-found facts, unlike a

statutory maximum sentence. Harris v. United States, 536 U.S. 545,

565 (2002).   Based on his conviction in this case of two drug

offenses involving at least fifty grams of crack, Jones was subject

to a statutory term of ten years to life under § 841(b)(1)(A).            The

district court’s finding that he had been convicted of two prior

felony drug offenses increased only the statutory minimum sentence.

Thus, no error occurred.         See United States v. Estrada, 428 F.3d

387, 389-90 (2d Cir. 2005).

           Last, Jones argues that a sentence of life imprisonment

without   parole   based    on    two   prior    convictions    for   cocaine


                                    - 5 -
possession is disproportionate and violates the Eighth Amendment

prohibition against cruel and unusual punishment.           We rejected a

similar challenge in United States v. Kratsas, 45 F.3d 63 (4th Cir.

1995), where we applied the three-part test of Solem v. Helm, 463

U.S. 277 (1983), which examines: “(1) the gravity of the offense

and the harshness of the penalty, (2) the sentences imposed on

other criminals in the same jurisdiction, and (3) the sentences

imposed for commission of the same crime in other jurisdictions.”

Kratsas, 45 F.3d at 66.

             Under the first prong of the Solem test, it is clear that

Jones’ offense was serious.       He was initially arrested on state

drug charges in October 2005 after he sold crack to a confidential

informant, but was released on bond.            Approximately two weeks

later, he was arrested again after he was stopped for speeding and

was found to be in possession of crack, scales, over $6000 and

other drug paraphernalia. The evidence at his trial showed that he

had been cooking cocaine into crack and selling crack in Virginia

for six months before his arrest. He had been previously convicted

of two felony drug offenses and numerous other state criminal

offenses.     As to the second and third prongs of the Solem test, a

life sentence without release for a major drug violation is not

disproportionate in comparison with other sentences under the

guidelines    or   sentences   imposed   by   states   within   the   Fourth

Circuit.    See United States v. D’Anjou, 16 F.3d 604, 613 (4th Cir.


                                  - 6 -
1994).   Therefore,   we    conclude     that   Jones’     sentence    is   not

constitutionally disproportionate and that he has failed to show an

Eighth Amendment violation.

          Accordingly,     we   affirm    the   sentence    imposed    by   the

district court.   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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