                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-5045


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

LEROY DEANGELO DARITY,

                 Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:09-cr-00013-MR-4)


Submitted:    September 27, 2010           Decided:   November 3, 2010


Before GREGORY, AGEE, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Andrew B.    Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North
Carolina,     for Appellant.     Anne M. Tompkins, United States
Attorney,     Amy E. Ray, Assistant United States Attorney,
Asheville,    North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Leroy Deangelo Darity appeals his conviction and 188

month    sentence        for    one   count    of    conspiracy     to    possess     with

intent   to       distribute     cocaine      base    in   violation      of   21   U.S.C.

§§ 841(a)(1), 846 (2006).              Darity, who was sentenced as a career

offender, argues that the district court erred in concluding

that he could not collaterally attack three predicate 1993 North

Carolina      drug    convictions,       and      accordingly,      his   sentence       was

unreasonable.        We affirm.

              A    sentence      is   reviewed       for   reasonableness        under    an

abuse of discretion standard.                  Gall v. United States, 552 U.S.

38, 51 (2007).           This review requires consideration of both the

procedural and substantive reasonableness of a sentence.                              Id.;

see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).

After determining whether the district court properly calculated

the defendant’s advisory guideline range, this court must decide

whether the district court considered the 18 U.S.C. § 3553(a)

(2006) factors, analyzed the arguments presented by the parties,

and sufficiently explained the selected sentence.                              Lynn, 592

F.3d at 575-76; see United States v. Carter, 564 F.3d 325, 330

(4th Cir. 2009)           (holding      that,        while    the      “individualized

assessment        need    not    be   elaborate       or   lengthy,      . . .   it   must

provide a rationale tailored to the particular case . . . and

[be] adequate to permit meaningful appellate review”).                           Properly

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preserved claims of procedural error are subject to harmless

error review.      Lynn, 592 F.3d at 576.

            Darity’s claim is based in part on Lynn v. West, 134

F.3d 582 (4th Cir. 1998).           In that case, we held that North

Carolina’s controlled substance tax (“Drug Tax”) (as it existed

prior to 1995) was a criminal penalty, rather than a civil one,

and concluded that certain constitutional protections, including

the Double Jeopardy Clause, must attach to the imposition of the

tax.    134 F.3d at 588.      Darity claims that because he paid the

tax in 1993, and was convicted of offenses arising out of the

same    conduct,    his   convictions       may   not   be     considered    in

determining whether he is a career offender.

            The merits of his claim aside, Darity may not now seek

to   collaterally    attack   his   prior    convictions      to   prevent   the

imposition of a career offender enhancement.                 According to the

Guidelines:

       Sentences resulting from convictions that (A) have
       been reversed or vacated because of errors of law or
       because     of     subsequently-discovered      evidence
       exonerating the defendant, or (B) have been ruled
       constitutionally invalid in a prior case are not to be
       counted. With respect to the current sentencing
       proceeding, this guideline and commentary do not
       confer upon the defendant any right to attack
       collaterally a prior conviction or sentence beyond any
       such rights otherwise recognized in law (e.g., 21
       U.S.C. § 851 expressly provides that a defendant may
       collaterally attack certain prior convictions).




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U.S. Sentencing Guidelines Manual § 4A1.2 n.6 (2009).                           The plain

language of the Guidelines forecloses Darity’s attack on his

1993 convictions.           Furthermore, the Supreme Court has held that,

at    least   in     the    context    of      a    challenge     to    an    enhancement

pursuant      to     the    Armed     Career        Criminal    Act,     there    is     no

constitutional right to collaterally attack a prior conviction,

with the exception of those convictions that were obtained in

violation of the right to counsel.                   See Custis v. United States,

511 U.S. 485, 494-95 (1994); see also United States v. Bacon, 94

F.3d 158, 163 (4th Cir. 1996) (extending Custis to challenges to

Guidelines         calculations).         Taken       together,    Custis       and    USSG

§ 4A1.2 stand for the proposition that “absent an allegation

that the defendant was denied counsel in the prior proceeding, a

district      court     sentencing        a    defendant    may    not       entertain    a

collateral     attack       on   a   prior     conviction      used    to    enhance     the

sentence      unless       the   attack       is   recognized     by    law.”      United

States v. Longstreet, 603 F.3d 273, 277 n.3 (5th Cir. 2010); see

Bacon, 94 F.3d at 161-64.

              Accordingly, we conclude that the district court did

not    err    in     calculating      Darity’s        Guidelines       range,    and   the

sentence was not procedurally unreasonable.                     We therefore affirm

the district court’s judgment.                     We dispense with oral argument

because the facts and legal contentions are adequately presented



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in the materials before the court and argument would not aid the

decisional process.

                                                        AFFIRMED




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