                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 11-4932


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RONNIE LEE NEELY,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00086-RJC-DSC-1)


Submitted:   May 30, 2012                   Decided:   June 12, 2012


Before MOTZ, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Roderick M. Wright, Jr., WRIGHT LAW FIRM OF CHARLOTTE, PLLC,
Charlotte, North Carolina, for Appellant.      Anne M. Tompkins,
United States Attorney, Richard Lee Edwards, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           A jury convicted Ronnie Lee Neely of conspiracy to

distribute and/or possess with intent to distribute cocaine and

cocaine base (Count One), and attempt to possess with intent to

distribute     cocaine       (Count     Two).            The    Government          filed    an

Information pursuant to 21 U.S.C.A. § 851 (West Supp. 2011),

notifying the district court that Neely had a prior felony drug

conviction and he was therefore subject to a mandatory minimum

sentence of twenty years under 21 U.S.C.A. § 841(b)(1)(B) (West

Supp.   2011).       The      district           court    sentenced         Neely     to    the

mandatory minimum sentence of twenty years’ imprisonment.                                    On

appeal, Neely argues the district court erred in enhancing his

sentence based on the prior conviction and that application of

the   enhancement    violated         the    Double       Jeopardy      Clause.            Neely

further argues that the indictment itself charging him with a

drug conspiracy violated the Double Jeopardy Clause.                               Finding no

error, we affirm.

             The gravamen of Neely’s appeal is that the use of his

prior   conviction,      a    2005     conviction          in       South    Carolina       for

trafficking      crack   cocaine,           to    subject       him    to     an     enhanced

sentence under 21 U.S.C.A. § 841(b)(1)(B) violated the Double

Jeopardy   Clause.       Neely    was       subject       to    a    ten-year       mandatory

sentence on Count One based on his conviction for conspiracy to

possess with intent to distribute fifty grams or more of crack

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cocaine and five kilograms or more cocaine.                    In light of the

Information    the     Government       filed,      Neely’s   mandatory    minimum

sentence became twenty years’ imprisonment on Count One.                        Neely

argues that the offense conduct underlying the prior conviction

occurred during the conspiracy period and therefore application

of   the   prior     conviction    to   enhance      his   sentence   amounts        to

punishing him for the same conduct.

            We have previously clarified that a conspiracy is a

distinct     crime    from   the    overt     acts     that   support     it,     and

therefore,    enhancing      a   sentence     for    conspiracy   because       of    a

prior conviction, where one of the overt acts supporting the

conspiracy resulted in the prior conviction, presents no double

jeopardy concerns.       United States v. Ambers, 85 F.3d 173, 177-78

(4th Cir. 1996) (observing the Supreme Court has consistently

rejected double jeopardy challenges to sentencing schemes that

enhance a defendant’s sentence because of a prior conviction).

Furthermore, we have held that when a defendant is convicted of

a drug conspiracy under 21 U.S.C.A. § 846 (West Supp. 2011),

prior felony drug convictions that fall within the conspiracy

period may be used to enhance the defendant’s sentence if the

conspiracy continued after his earlier convictions were final.

United States v. Smith, 451 F.3d 209, 224-25 (4th Cir. 2005); 21

U.S.C.A. § 841(b)(1)(A) (providing penalties for violations of

§ 846 and stating that prior felony drug conviction may be used

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to enhance sentence if it is final); see also United States v.

Howard,       115   F.3d    1151,       1158    (4th       Cir.     1997)      (“[B]ecause      the

‘purpose       of   the     mandatory      minimum             enhancement      is     to   target

recidivism, it is more appropriate to focus on the degree of

criminal activity that occurs after the defendant’s conviction

for     drug-related         activity          is       final     rather       than    when    the

conspiracy began.’”) (citing United States v. Hansley, 54 F.3d

709, 717 (11th Cir. 1995)).                    Because we conclude the conspiracy

for   which     Neely       was   convicted             continued     well     after    his    2005

conviction became final, this conviction was properly considered

a prior conviction for purposes of enhancing his sentence, and

such consideration did not violate the Double Jeopardy Clause.

               To the extent Neely argues his very indictment on the

conspiracy charge violated his rights against double jeopardy,

this court reviews a double jeopardy claim raised for the first

time on appeal for plain error.                         Brecht v. Abrahamson, 507 U.S.

619, 635 (1993); United States v. Sutton, 961 F.2d 476, 479 (4th

Cir. 1992).          Clearly, Neely’s 2005 conviction for trafficking

crack cocaine on a single day in October 2004 is not the same

offense as the subject conspiracy which spanned eight years.                                    In

any   event,        there    is    no    double          jeopardy       violation       when   two

separate sovereigns—the United States and the state of North

Carolina—prosecute           an    individual            for    the     same    offense.       See

Heath    v.    Alabama,      474    U.S.       82,       89    (1985)    (applying      separate

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sovereign exception); Rinaldi v. United States, 434 U.S. 22, 28

(1977) (“[T]he Constitution does not deny the State and Federal

Governments the power to prosecute for the same act.”).                   We

therefore conclude this argument is without merit.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions   are   adequately   presented    in    the    material

before   the   court   and   argument   will   not   aid    the    decisional

process.

                                                                     AFFIRMED




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