                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-4164


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

TONY TAYLOR,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:06-cr-00279-D-1)


Submitted:    October 9, 2008              Decided:   November 24, 2008


Before NIEMEYER, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard Croutharmel, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Tony     Taylor   was   convicted      by    a   jury   of    conspiracy

involving more than 50 grams of cocaine base (crack), 21 U.S.C.

§ 846 (2000) (Count 1); distribution and possession with intent

to distribute more than 5 grams of crack, 21 U.S.C. § 841(a)(1)

(2000) (Counts 3-7); and distribution and possession with intent

to distribute more than 50 grams of crack, 21 U.S.C. § 841(a)(1)

(Count 8).     He received a mandatory life sentence for Counts 1

and 8 under 21 U.S.C.A. § 841(b)(1)(A) (West 1999 & Supp. 2008),

and a career offender sentence of 360 months imprisonment on

Counts 3-7.    U.S. Sentencing Guidelines Manual § 4B1.1 (2007).

            Taylor     appeals      his       sentence,      arguing       that    the

difference between the statutory mandatory minimum penalties for

crack     offenses     and    powder       cocaine       offenses        creates    an

unconstitutional      disparity     that      violates    the   Equal     Protection

Clause.     He also argues that his life sentence violates the

Eighth Amendment and that the district court erred in finding

that he had the predicate offenses to qualify for a mandatory

life sentence.        In addition, Taylor contends that the district

court sentenced him more harshly because he exercised his right

to trial, and clearly erred in finding that he was a manager or

supervisor in the conspiracy.          We affirm.

            First, Taylor’s challenge to the constitutionality of

§ 841 is without merit.         We have repeatedly rejected claims that

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the     sentencing     disparity     between            powder        cocaine      and     crack

offenses violates either equal protection or due process.                                    See

United States v. Perkins, 108 F.3d 512, 518 (4th Cir. 1997);

United States v. Burgos, 94 F.3d 849, 876-77 (4th Cir. 1996) (en

banc); United States v. Fisher, 58 F.3d 96, 99-100 (4th Cir.

1995).      To the extent that Taylor seeks to have this court

reconsider     these      decisions,         a    panel       of      this    court      cannot

overrule the decision of a prior panel.                        United States v. Simms,

441 F.3d 313, 318 (4th Cir. 2006).                     Further, the 2007 amendments

to    the    sentencing         guidelines             have     no      effect        on     the

constitutionality         or   applicability           of     the   statutory       mandatory

minimum sentences for crack offenses, and the Supreme Court’s

decision in Kimbrough v. United States, 128 S. Ct. 558, 575

(2007),     that   district      courts          may    consider        the     crack/powder

cocaine sentencing ratio as a possible basis for variance from

the guidelines, is unrelated to the constitutionality of the

sentencing disparity.

             Taylor’s claim that a mandatory life sentence under

§ 841     violates     the     Eighth     Amendment            because        it    precludes

individualized       sentencing     and      the       consideration          of   mitigating

factors has been rejected by the Supreme Court in Harmelin v.

Michigan, 501 U.S. 957, 994-96 (1991), and by this court in

United    States     v.   Kratsas,      45       F.3d    63,     68    (4th     Cir.     1995).

Taylor also argues that his sentence is disproportionate to his

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crime.    However, applying the proportionality test set out in

Solem v. Helm, 463 U.S. 277, 292 (1983), we held in Kratsas that

a   mandatory   life     sentence    under       § 841   does    not    violate   the

Eighth Amendment.       45 F.3d at 68.          Therefore, this claim fails.

            Taylor maintains that he lacked the two prior felony

drug convictions needed to qualify him for the statutory life

sentence under § 841(b)(1)(A) because his state sentencing range

for his 1996 North Carolina drug offense was 8-10 months.                          A

person convicted of a violation § 841(a) that involved at least

fifty grams of crack, who has two or more prior convictions for

a felony drug offense, is subject to a mandatory term of life

imprisonment under § 841(b)(1)(A).                A “felony drug offense” is

defined in 21 U.S.C.A. § 802(44) (West 2000 & Supp. 2008) as a

drug offense “that is punishable by imprisonment for more than

one year” under any federal or state law.                       Burgess v. United

States, 128 S. Ct. 1572, 1575 (2008).

            Taylor      concedes    that       this   issue     is   foreclosed    by

United   States    v.    Harp,     406    F.3d    242,   246     (4th   Cir.   2005)

(holding that, to determine whether crime is punishable by term

exceeding    one     year,   court       must    consider     maximum    aggravated

sentence that could be imposed on any defendant), because the

maximum possible sentence for the offense was 25-30 months.                        He

suggests that we reconsider our decision in Harp.                       Because one

panel of this court may not overrule the decision of another

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panel, see Simms, 441 F.3d at 318, the district court did not

err in finding that Taylor had the necessary predicate offenses

to qualify for the mandatory life sentence.

              Taylor argues that the district court clearly erred in

adopting      the   recommendation      in    the   presentence           report    for   a

three-level role adjustment under USSG § 3B1.1(b).                          We need not

reach the merits of the issue because a ruling in Taylor’s favor

would not have affected either his mandatory life sentence for

Counts 1 and 8 or his career offender sentence for the remaining

counts.

              Last, Taylor asserts that the district court punished

him    more   harshly    than    it   might    have,      based      on    the     court’s

comment during its discussion of the sentencing factors in 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2008), that “[t]he court

did have a lengthy trial in this matter.”                     We review a sentence

for abuse of discretion.          Gall v. United States, 128 S. Ct. 586,

597 (2007).         Our review encompasses both procedural soundness

and substantive reasonableness.               Id.       The record in this case

does    not    support   Taylor’s       claim.          The    court       imposed     the

mandatory      life   sentence    for   Counts      1    and    8,   and     imposed      a

sentence at the bottom of the career offender guideline range on

the remaining counts.           Applying a presumption of reasonableness

for the guideline sentence, see United States v. Go, 517 F.3d

216, 218 (4th Cir. 2008); see also Rita v. United States, 127 S.

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Ct.     2456,      2462-69      (2007)         (upholding      presumption         of

reasonableness for within-guideline sentence), and finding that

Taylor has not rebutted the presumption of reasonableness, we

conclude that his sentence is reasonable.

              We   therefore    affirm        the   sentence    imposed     by    the

district    court.      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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