                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4481



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MARIO DEANDRE LEMONS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00339-NCT)


Submitted:   December 3, 2007                 Decided:   June 2, 2008


Before WILKINSON, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, William C. Ingram, First
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, David P.
Folmar, Jr., Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Mario Deandre Lemons entered a conditional plea of guilty

to one count of possession of a firearm by a felon, in violation of

18 U.S.C. §§ 922(g)(1), 924(a)(2) (2000), reserving the right to

challenge the district court’s denial of his motion to dismiss the

indictment.   Lemons appeals, contending that his predicate state

convictions were not crimes “punishable by imprisonment for a term

exceeding one year,” as required by § 922(g)(1). Finding no error,

we affirm.

           The district court relied on a 2005 conviction for

possession of cocaine with intent to sell and deliver, a Class H

felony under North Carolina law.     Lemons asserts that the maximum

sentence for the crime based on his individual criminal history and

North Carolina’s structured sentencing scheme did not exceed twelve

months. However, as Lemons concedes, his argument is foreclosed by

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

denied, 126 S. Ct. 297 (2005).    Thus, because it is undisputed that

a sentence of over twelve months could be imposed on a defendant

convicted of possession with the intent to sell and deliver cocaine

in North Carolina, the district court properly considered Lemons’

prior conviction as a predicate felony for purposes of § 922(g)(1).

Lemons urges us to reexamine Harp in light of the Supreme Court’s

recent decision in Cunningham v. California, 127 S. Ct. 856, 860

(2007)   (holding   that   California’s   determinate   sentencing   law


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violated Sixth Amendment by “assign[ing] to the trial judge, not to

the jury, authority to find the facts that expose a defendant to an

elevated ‘upper term’ sentence”).        However, “a panel of this court

cannot overrule, explicitly or implicitly, the precedent set by a

prior panel of this court.         Only the Supreme Court or this court

sitting en banc can do that.”        Scotts Co. v. United Indus. Corp.,

315 F.3d 264, 271-72 n.2 (4th Cir. 2002) (internal quotation marks

and citation omitted).        Moreover, our decision in Harp was not

called   into   question      by   Cunningham,   as     Harp   involved     the

determination of a maximum sentence without regard to the findings

made by a sentencing judge as to the particular defendant.

           We find similarly meritless Lemons’ related arguments

predicated on the rule of lenity, the principle of constitutional

doubt, and an unpublished opinion addressing the application of the

Assimilative Crimes Act, 18 U.S.C. § 13 (2000).

           Accordingly, we affirm Lemons’ conviction and sentence.

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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