                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4731


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHARLES RICHARD BURKE, a/k/a Rick, a/k/a “D”, a/k/a Detroit
Rick, a/k/a Hasim Coleman, a/k/a Rick Calloway, a/k/a Jihad
Alexander,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (3:10-cr-00224-1)


Submitted:   May 17, 2013                     Decided:   June 6, 2013


Before DAVIS, WYNN, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael D. Payne, REDMAN & PAYNE, ATTORNEYS AT LAW, Charleston,
West Virginia, for Appellant.      R. Booth Goodwin II, United
States Attorney, R. Gregory McVey, Assistant United States
Attorney, Huntington, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Charles     Richard     Burke     appeals     his     sentence        of   236

months of imprisonment following his guilty plea to conspiracy

to distribute oxycodone and 280 grams or more of cocaine base,

in violation of 21 U.S.C. § 846 (2006).                  Burke contends that the

district court erred in determining that his prior state and

federal    felony   drug      convictions     are   separate       sentences        under

U.S. Sentencing Guidelines Manual (“USSG”) § 4A1.2(a)(2) (2011),

and,     consequently,     incorrectly        classified        him    as    a     career

offender under USSG § 4B1.1(a).             We affirm.

            In   assessing      a   challenge       to    the    district        court’s

application of the Guidelines, we review the district court’s

factual findings for clear error and its legal conclusions de

novo.      United States v. Perez, 609 F.3d 609, 612 (4th Cir.

2010).

            Pursuant     to    USSG     § 4A1.2(a)(2),          “[p]rior     sentences

always are counted separately if the sentences were imposed for

offenses that were separated by an intervening arrest . . . .”

USSG § 4A1.2(a)(2).           In the absence of an intervening arrest,

“prior sentences are counted separately unless (A) the sentences

resulted     from     offenses        contained     in     the        same       charging

instrument; or (B) the sentences were imposed on the same day.”

Id.      Accordingly,      where    a   defendant,       like     Burke,     has       been

sentenced on different days for federal and state crimes charged

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in separate indictments, those convictions are properly counted

as   separate   sentences     under     § 4B1.1.     See     United   States    v.

Rooks, 596 F.3d 204, 212-13 (4th Cir. 2010) (explaining that

defendant’s     state   and   federal     convictions,     for   which    he   was

indicted and sentenced separately, should be counted as separate

offenses despite the fact that they arose from the same course

of criminal conduct).

           We therefore find no error in Burke’s classification

as a career offender and affirm his sentence.                 We dispense with

oral   argument    because      the    facts   and   legal    contentions      are

adequately    presented    in    the    materials    before    this   court    and

argument would not aid the decisional process.

                                                                         AFFIRMED




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