                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-4596


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

AARON COPPEDGE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:09-cr-00064-F-1)


Submitted:   October 26, 2011               Decided:   November 18, 2011


Before MOTZ, KING, and DAVIS, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina; Keith A. Williams, LAW OFFICES OF KEITH A.
WILLIAMS, P.A., Greenville, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Jennifer P.
May-Parker,   Kristine   L.   Fritz,  Assistant   United  States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A federal jury convicted Aaron Coppedge of conspiracy

to distribute and possess with intent to distribute cocaine base

(“crack”), in violation of 21 U.S.C. § 846 (2006); four counts

of distribution of crack, in violation of 21 U.S.C. § 841(a)

(2006);    and     possession        with      intent         to    distribute      crack,        in

violation of 21 U.S.C. § 841(a).                     The district court sentenced

Coppedge to life imprisonment for the conspiracy and possession

with     intent    to     distribute           counts,        the       statutory      mandatory

minimum     term,       and     360       months         of        imprisonment        for    the

distribution counts, to be served concurrently.                                   Coppedge now

appeals.      For    the      reasons      that     follow,         we    affirm    Coppedge’s

convictions,        but       vacate        the        sentence           and     remand       for

resentencing.

            Coppedge       first         argues     on    appeal         that    the   district

court erred in limiting his cross-examination of two prosecution

witnesses, in violation of his Sixth Amendment right to confront

his    accusers.           “[A]       defendant’s             right       to    cross-examine

cooperating       witnesses         about       sources        of       potential      bias       is

guaranteed    by    the    Confrontation            Clause         of    the    Constitution.”

United    States    v.     Cropp,        127    F.3d     354,       358    (4th     Cir.     1997)

(citation omitted).           “We review for abuse of discretion a trial

court’s    limitations         on    a    defendant’s          cross-examination             of    a

prosecution witness.”           United States v. Smith, 451 F.3d 209, 220

                                                2
(4th Cir. 2006) (citation omitted).             Moreover, a district court

“possesses   wide    latitude      to       impose    reasonable      limits   on

cross-examination,      premised    on      such     concerns   as    prejudice,

confusion, repetition, and relevance.”               Id. (citations omitted).

We have thoroughly reviewed the record and conclude that the

district court did not err in imposing reasonable limitations on

Coppedge’s cross-examination of these witnesses.

          Coppedge next argues that the district court plainly

erred in admitting testimony of a witness not proffered as an

expert regarding a drug-related code word.                As Coppedge failed

to object to this testimony before the district court, we review

this issue for plain error.         See Fed. R. Crim. P. 52(b); United

States v. Olano, 507 U.S. 725, 731-32 (1993).                    To meet this

standard, Coppedge must demonstrate that there was error, that

was plain, and that affected his substantial rights.                  Olano, 507

U.S. at 731-32.      Moreover, even if Coppedge demonstrates plain

error occurred, we will not exercise discretion to correct the

error   “unless   the    error     seriously       affect[s]    the    fairness,

integrity or public reputation of judicial proceedings.”                       Id.

(internal quotation marks and citation omitted).                   We conclude,

based on our review of the record, that Coppedge has failed to

meet these standards and therefore failed to demonstrate that

the district courtly plainly erred.



                                        3
              Coppedge also argues that the district court abused

its      discretion       in         admitting          testimony        regarding        drug

transactions in which Coppedge was involved that occurred prior

to the substantive counts of conviction.                          We review a district

court’s    determination            of    the     admissibility     of    evidence       under

Fed. R. Evid. 404(b) for abuse of discretion.                            United States v.

Queen,    132     F.3d    991,       995     (4th      Cir.     1997).      An    abuse    of

discretion occurs only when “the trial court acted arbitrarily

or    irrationally       in    admitting           evidence.”        United      States    v.

Williams, 445 F.3d 724, 732 (4th Cir. 2006) (internal quotation

marks and citation omitted).

              Rule 404(b) prohibits the admission of “[e]vidence of

other crimes, wrongs, or acts . . . to prove the character of a

person in order to show action in conformity therewith.”                                  Fed.

R.    Evid.     404(b).        Such        evidence      is     “admissible      for    other

purposes,       such     as    proof         of       motive,    opportunity,          intent,

preparation, plan, knowledge, identity, or absence of mistake.”

Id.      It is an inclusionary rule, allowing evidence of other

crimes or acts to be admitted, except that which tends to prove

only criminal disposition.                  See Queen, 132 F.3d at 994-95.                 For

such evidence to be admissible, it must be “(1) relevant to an

issue     other    than       the        general      character     of    the    defendant;

(2) necessary to prove an element of the charged offense; and

(3) reliable.”         United States v. Hodge, 354 F.3d 305, 312 (4th

                                                  4
Cir. 2004) (citing Queen, 132 F.3d at 997).                              Additionally, the

probative     value      of     the    evidence          must     not    be     substantially

outweighed by its prejudicial effect.                      Id. (citing Fed. R. Evid.

403).

             Rule 404(b) does not, however, apply to evidence of

acts intrinsic to the crime charged.                       United States v. Chin, 83

F.3d 83, 87 (4th Cir. 1996).                 “Other criminal acts are intrinsic

when they are inextricably intertwined or both acts are part of

a   single    criminal        episode      or    the     other     acts       were   necessary

preliminaries       to    the    crime       charged.”            Id.     at    88    (internal

quotation     marks      and    citation        omitted).          With    respect         to    the

testimony     of    Coppedge’s         codefendant,          we    conclude          that       this

testimony     was     intrinsic         to      the      charged        offenses,      as        the

transactions testified to were part of the charged conspiracy.

We also conclude that the district court properly admitted the

other witness’ challenged testimony pursuant to Rule 404(b), and

that this evidence was not unduly prejudicial.                                 See Queen, 132

F.3d at 994 (“Prejudice, as used in Rule 403, refers to evidence

that has an ‘undue tendency to suggest decision on an improper

basis, commonly, though not necessarily, an emotional one.’”)

(citations omitted).

             Coppedge      next       argues        on   appeal    that        the   Government

failed   to    prove      beyond       a     reasonable         doubt     that       the    prior

convictions listed in its 21 U.S.C. § 851 (2006) notice were

                                                5
sustained by Coppedge.                If a defendant sustains a conviction

under § 841(a) or § 846 after sustaining a prior conviction for

a felony drug offense, the defendant is subject to a statutory

mandatory      minimum     term     of    twenty       years     of   imprisonment.             21

U.S.C.      § 841(b)(1)(A)        (2006),       current     version        at    21     U.S.C.A.

§ 841(b)(1)(A)        (West       Supp.    2011).          The    statutory            mandatory

minimum is raised to life imprisonment if the defendant sustains

the conviction after two convictions for felony drug offenses

have become final.          Id.

               In order to enhance the defendant’s sentence based on

his    prior    convictions,        however,         the   Government           must    file    an

information pursuant to 21 U.S.C. § 851 “stating in writing the

previous convictions to be relied upon.”                       21 U.S.C. § 851(a)(1).

If    the   defendant      contests       the       information       in   the    notice,       or

claims that any conviction is invalid, he must file a written

response       and   the    district        court       must     “hold      a     hearing       to

determine any issues raised by the response which would except

the person from increased punishment.”                         21 U.S.C. § 851(c)(1).

In    reviewing      a   district        court’s       imposition          of    an     enhanced

sentence based on §§ 841, 851, we review the court’s findings of

fact for clear error and its legal conclusions de novo.                                   United

States v. Kellam, 568 F.3d 125, 143 (4th Cir.), cert. denied,

130 S. Ct. 657 (2009).             We have reviewed the record and conclude

that    the    district       court      did    not     err    in      finding         that    the

                                                6
Government proved that Coppedge sustained the prior convictions

listed in the § 851 information.

               Coppedge next argues that the district court plainly

erred    in    instructing       the       jury      regarding    its    finding      of    the

amount of drugs for which Coppedge was responsible.                           As Coppedge

did not challenge the jury instructions in the district court,

we review this argument for plain error.                       See Olano, 507 U.S. at

731-32.       Moreover, “‘[w]e review a jury instruction to determine

whether, taken as a whole, the instruction fairly states the

controlling law.’”             United States v. Hurwitz, 459 F.3d 463, 474

(4th Cir. 2006) (quoting United States v. Moye, 454 F.3d 390,

398 (4th Cir. 2006) (en banc)).                       We conclude that the district

court’s instruction to the jury, that it must find the amount of

drugs reasonably foreseeable to Coppedge during the course of

the conspiracy, fairly stated the controlling law.                                See United

States    v.        Collins,    415       F.3d    304,      311-14     (4th   Cir.    2005).

Therefore, the court did not plainly err in instructing the jury

on the drug weight finding.

               Coppedge       also    argues         that   one   of    the   convictions

listed in the § 851 notice, and used to enhance the mandatory

minimum       for    the     conspiracy      and      distribution       counts      to    life

imprisonment,          was     not    a    felony        punishable      by   a     term    of




                                                 7
imprisonment          exceeding    one    year. 1       We      review    a    sentence       for

reasonableness,            applying      an    abuse       of    discretion          standard.

Gall v. United States, 552 U.S. 38, 51 (2007); see also United

States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied,

130   S.    Ct.      290   (2009).       In    so   doing,       we    first       examine    the

sentence for “significant procedural error,” including “failing

to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the

[18 U.S.C.] § 3553(a) [(2006)] factors, selecting a sentence

based      on   clearly      erroneous        facts,    or      failing       to    adequately

explain the chosen sentence.”                 Gall, 552 U.S. at 51.

                As    discussed    above,       under      21    U.S.C.       § 841(b)(1)(A)

(2006), a defendant is subject to a statutory mandatory minimum

term of imprisonment of ten years unless he has sustained a

prior conviction for a felony drug offense, in which case the

statutory            mandatory       minimum        becomes           twenty        years      of

imprisonment,          and   is   raised      to    life     imprisonment           if   he   has

sustained two such prior convictions.                      A felony drug offense is

defined in part as an “offense punishable by imprisonment for

more than one year under any law . . . of a State.”                                  21 U.S.C.

§ 802(44) (2006).

      1
       Coppedge has not challenged on appeal whether the other
conviction listed in the § 851 notice, for trafficking cocaine,
qualified as a felony drug offense.



                                               8
               We conclude that Coppedge’s challenge to his enhanced

sentence       must      be    sustained.        Here,       one      of      Coppedge’s               prior

convictions was for possession of controlled substances, a Class

I   felony       under        North    Carolina       law.         At      the        time        of    his

conviction,        Coppedge’s         prior     record       level        was        III,     and       the

sentencing court found that he should be sentenced within the

presumptive range of the applicable sentencing table under N.C.

Gen. Stat. § 15A-1340.17(c) (2007).                       Under North Carolina law,

Coppedge faced a maximum term of imprisonment of eight months.

See     N.C.     Gen.       Stat.     §     15A-1340.17(d)            (2007).              Therefore,

Coppedge         could      not      have     received       a    term          of     imprisonment

exceeding twelve months for this prior conviction.

               In United States v. Simmons, 648 F.3d 237 (4th Cir.

2011) (en banc), we determined that an offense is not punishable

by a term exceeding one year of imprisonment if the defendant

could      not     have       actually       received        more       than         one     year        of

imprisonment          for     that    offense,       based       on     his      prior       criminal

history and other factors.                   As Coppedge could not have received

a   term    exceeding          one     year    of     imprisonment              for        this    prior

offense, he did not have two qualifying predicate offenses to

increase the statutory penalties under § 841(b)(1)(A).                                        Because

the     advisory          Guidelines          range      for        the         conspiracy              and

distribution          counts      was       determined       based         on        the     statutory

mandatory minimum of life imprisonment rather than twenty years

                                                 9
of imprisonment, see U.S. Sentencing Guidelines Manual § 5G1.1

(2010), Coppedge was sentenced based on an incorrect Guidelines

calculation        and    an    inapplicable         statutory        mandatory    minimum.

Thus the sentences for the conspiracy and distribution counts

are procedurally unreasonable. 2

                 Coppedge also argues that the district court erred in

rejecting his claim that the disparity between punishments for

crack and cocaine offenses is unconstitutional.                            In his reply

brief, Coppedge also asserts that the Fair Sentencing Act should

apply      retroactively        to     defendants     such      as    Coppedge    who    were

sentenced before the effective date of the act.                                We conclude

that    the      district      court    did   not    err   in    rejecting       Coppedge’s

argument.         This court has repeatedly rejected arguments that the

crack      and    cocaine      punishments      in    § 841     are    unconstitutional.

See, e.g., United States v. Burgos, 94 F.3d 849, 876 (4th Cir.

1996) (collecting cases).                   Moreover, a panel of this court has

determined         that     the      Fair     Sentencing        Act     does     not    apply

retroactively to defendants sentenced before the effective date

of the act.         See United States v. Bullard, 645 F.3d 237, 248-49

(4th Cir.), cert. denied, 2011 WL 4536465 (2011) (No. 11-5912).


       2
       This conclusion implies no criticism of the district court
or the Government, both of which dutifully applied authoritative
Circuit precedent at the time of Coppedge’s prosecution and
sentencing.



                                               10
As one panel of this court may not overrule another panel, see

United States v. Rivers, 595 F.3d 558, 564 (4th Cir. 2010), this

argument fails.

                Coppedge next argues that the district court erred in

finding      that       he      was     a    career           offender       under     the     advisory

Guidelines, and erred in applying an enhancement for his role as

a manager in the conspiracy.                        In reviewing the district court’s

calculations          under       the       Guidelines,             “we     review     the     district

court’s legal conclusions de novo and its factual findings for

clear error.”              United States v. Manigan, 592 F.3d 621, 626 (4th

Cir. 2010) (internal quotation marks and citation omitted).                                           We

will “find clear error only if, on the entire evidence, we are

left with the definite and firm conviction that a mistake has

been      committed.”             Id.       at    631        (internal      quotation         marks   and

citation omitted).

                Under       the      Guidelines,             a     defendant      is   considered      a

career offender if (1) he was eighteen years old at the time of

the    offense        of    conviction,            (2)       the    offense    of      conviction     is

either      a    felony         crime       of     violence          or     controlled        substance

offense,        and    (3)      he    has        sustained         two    prior    convictions        for

felony      crimes         of   violence           or    controlled          substance        offenses.

U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.1(a) (2010).                                          A

crime of violence is defined in part as any offense punishable

by    a   term    of       imprisonment            exceeding          one    year      that    involves

                                                        11
conduct    that    presents     a    serious     potential     risk       of   physical

injury    to   another.         USSG    § 4B1.2(a)(1)-(2).            A       controlled

substance      offense    is    an     offense    punishable     by       a    term    of

imprisonment exceeding one year that prohibits the manufacture,

distribution, or dispensing of a controlled substance, or the

possession with intent to manufacture, distribute, or dispense a

controlled substance.          USSG § 4B1.2(b).

             Although    Coppedge       initially     objected    to       the    career

offender finding under the Guidelines, at the sentencing hearing

he explicitly withdrew that objection.                 Therefore, Coppedge has

waived    review   of    this    issue.         See   Olano,   507     U.S.      at   733

(“[W]aiver is the ‘intentional relinquishment or abandonment of

a known right.’”) (citations omitted).                    However, even in the

absence of a waiver, we would conclude that the district court

did not err in finding that Coppedge was a career offender.                            As

discussed above, Coppedge’s prior conviction for possession of

controlled     substances       is   not    a    felony   controlled           substance

offense as Coppedge could not have received more than one year

of imprisonment and the offense did not involve the intent to

distribute the controlled substances.                 However, even discounting

this conviction, Coppedge had sustained a sufficient number of

convictions for felony controlled substance offenses and crimes

of violence to qualify as a career offender.                     As we find that

the district court did not err in finding that Coppedge was a

                                           12
career offender, it is unnecessary to review his argument that

the court erred in applying an enhancement for his role as a

manager   under   the    Guidelines,         as   his     career     offender       status

rendered that calculation moot.

             Coppedge    also       argues      that     the   statutory         mandatory

minimum term of life imprisonment for a drug conspiracy offense

violates the Fifth Amendment’s Due Process Clause and the Eighth

Amendment’s prohibition on cruel and unusual punishment.                            As we

have determined that the statutory mandatory minimum term of

life imprisonment is not applicable to Coppedge, however, we

decline to reach this issue at this time.

           Finally, Coppedge argues that the district court erred

in enhancing his sentence based on prior convictions that were

neither   admitted      by   him     nor     proved      to    the   jury    beyond     a

reasonable     doubt.        This    argument       is    foreclosed        by    binding

precedent, see, e.g., Apprendi v. New Jersey, 530 U.S. 466, 490

(2000) (“Other than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt.”), and therefore must fail.

           Accordingly,       we     affirm       Coppedge’s       convictions,       but

vacate the sentence for the conspiracy and distribution counts,

and remand for resentencing in light of Simmons.                         We dispense

with oral argument because the facts and legal contentions are

                                           13
adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.



                                                     AFFIRMED IN PART,
                                                      VACATED IN PART,
                                                          AND REMANDED




                                    14
