                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4379



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


REGINALD DESHAWN STURDIVANT,

                                              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-00242-D)


Submitted:   December 19, 2007            Decided:   January 15, 2008


Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Vidalia Patterson, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Banumathi
Rangarajan, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Reginald Deshawn Sturdivant was named in a one-count

indictment charging that, after having been convicted of a crime

punishable by a term of imprisonment exceeding one year, he did

knowingly    possess,   in   and   affecting   commerce,   a   firearm,   in

violation of 18 U.S.C. §§ 922(g)(1), 924 (2000).                Sturdivant

requested a bench trial to preserve the issue of whether his state

conviction qualified as a felony under federal law for purposes of

adjudging him as a felon in possession of a firearm.            Sturdivant

stipulated to the possession of the firearm and the interstate

nexus.      He also did not contest introduction of the state court

transcript of his guilty plea to the state conviction.          Sturdivant

received a 5-6 month sentence for the state offense.              Based on

Sturdivant’s state felony drug conviction and this court’s decision

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

district court found him guilty of possession of a firearm by a

felon. Sturdivant received a 46-month sentence and timely noted an

appeal.    We affirm.

            The question of whether an individual has previously been

convicted of a felony is a legal determination that we review de

novo.     United States v. Haynes, 961 F.2d 50, 51 (4th Cir. 1992).

Sturdivant’s sole argument on appeal is that, because he could not

have been sentenced to more than one year for the 2005 drug

conviction under the North Carolina structured sentencing scheme,


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his    offense    was    not    “punishable      by    imprisonment    for    a   term

exceeding       one    year.”        According    to     Sturdivant,    the       legal

determination of whether a conviction is punishable by imprisonment

for a term exceeding one year is directly impacted by developing

case law, beginning with Apprendi v. New Jersey, 530 U.S. 466

(2000), and culminating with United States v. Booker, 543 U.S. 220

(2005).    Sturdivant asserts that those cases define the parameters

of the Sixth Amendment’s guarantee of a trial by jury as applied to

sentence-enhancing facts, whether characterized as offense elements

or sentence elements.

            Under the North Carolina structured sentencing scheme,

Sturdivant received a sentence in the presumptive range for his

2005 drug conviction.             Because the offense was a Class I felony,

the aggravated minimum sentence Sturdivant could have received

under     the    structured        sentencing    tables     was   twelve      months’

imprisonment.         See N.C. Gen. Stat. § 15A-1340.17(c), (d) (1999).

At    sentencing      for   the    current   federal     offense,     however,     the

district court found Sturdivant’s 2005 conviction was punishable by

more than one year, based on the maximum sentence that could be

imposed for that crime upon any defendant.                  In other words, the

district court concluded that the offense was punishable by more

than one year based on the maximum aggravated sentence of fifteen

months that could be imposed under the North Carolina structured

sentencing scheme for a defendant with the worst criminal history


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category. This, Sturdivant argues, is precisely what is prohibited

by Apprendi, Blakely v. Washington, 542 U.S. 296 (2004), and

Booker.   He claims the aggravating factors are considered elements

of the offense after the line of Supreme Court cases and therefore

finding a crime a felony based on the upper end of a possible

sentence for any defendant is unconstitutional.

           Sturdivant’s argument is foreclosed by our decision in

Harp.   In Harp, the defendant argued that one of his Armed Career

Criminal Act predicate convictions (possession with intent to

distribute marijuana, a Class I felony) did not qualify as a “crime

punishable     by   more   than    one     year”   because    the   maximum

“non-aggravated punishment is only twelve months.”           Harp, 406 F.3d

at 245, 246.    Declining to apply an “individualized analysis,” the

court held that “to determine whether a conviction is a crime

punishable by a prison term exceeding one year . . . we consider

the maximum aggravated sentence that could be imposed for that

crime upon a defendant with the worst possible criminal history.”

Id. at 246.

           Sturdivant contends that this interpretation mandates an

increase in punishment based not on the defendant’s actual criminal

history, but the potential criminal history of any person in the

class of people who committed the same crime as the defendant.

Despite Sturdivant’s argument to the contrary, the law in this

Circuit is settled by Harp.       Because the statutory maximum penalty


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for Sturdivant’s prior offense exceeded one year of imprisonment,

the offense was a felony under 21 U.S.C. § 841(b)(1)(A) (2000)

warranting    the   enhanced   sentence.   We   therefore   affirm   the

conviction.

              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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