                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 07-5052



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


TIMOTHY RAY POLK,

                Defendant - Appellant.



                             No. 07-5063



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


TIMOTHY RAY POLK,

                Defendant - Appellant.



Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr., Chief
District Judge. (1:07-cr-00063-JAB-1; 1:07-cr-00169-JAB-2)


Submitted:   May 30, 2008                   Decided:   June 13, 2008


Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Todd A. Smith, LAW FIRM OF TODD A. SMITH, Graham, North Carolina,
for Appellant. Anna Mills Wagoner, United States Attorney, David
P. Folmar, Jr., Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

          Timothy Ray Polk pled guilty to possession of a firearm

by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and conspiracy

to distribute fifty grams or more of cocaine base (crack), 21

U.S.C.A. § 846 (West 1999 & Supp. 2007).*           He received a sentence

of 235 months for the drug offense and a concurrent sentence of 120

months, the statutory maximum, for the firearm offense.                  Polk

appeals   his      sentence,     challenging      the     district    court’s

determination that he qualified for sentencing as a career offender

under U.S. Sentencing Guidelines Manual § 4B1.1 (2006).               He also

contends that the sentence was unreasonable.            We affirm.

          Polk     argues   that    his   1993    North   Carolina    assault

conviction should not be treated as a predicate felony conviction

for career offender status because, while the maximum sentence at

the time he was convicted and sentenced was two years imprisonment,

a change in the law the following year reduced the maximum sentence

to 150 days.       For career offender purposes, a “prior felony

conviction”   is   any   prior     conviction    “punishable   by    death   or

imprisonment for a term exceeding one year,” even if the offense is

not designated as a felony.         USSG § 4B1.2, comment. (n.1).        Polk

objected to his career offender status on this ground in the



     *
      These offenses were charged in two separate indictments. The
firearm offense was Count Three charged in Indictment No. 1:07-cr-
63-1; the crack offense was the second object of the conspiracy
charged in Indictment No. 1:07-cr-169-2.

                                     - 3 -
district court, but at sentencing he acknowledged that settled

Fourth Circuit law did not support his position. See United States

v. Harp, 406 F.3d 242, 245 (4th Cir. 2005) (citing United States v.

Johnson,    114   F.3d    435,    444-45   (4th   Cir.    1997)   (holding   that

determination of whether prior conviction was punishable by term of

imprisonment exceeding one year is governed by law in effect on

date of conviction)); United States v. Carter, 300 F.3d 415, 427

(4th Cir. 2002).     On appeal, Polk urges us to reconsider the issue.

However, a panel of this court may not overrule a decision by a

prior panel.      Only the Supreme Court or an en banc decision by this

court may do that.        United States v. Chong, 285 F.3d 343, 346-47

(4th Cir. 2002).

            Next, Polk contends that his sentence was unreasonable

because the district court declined to vary below the guideline

range and did not adequately explain its decision.                      Appellate

courts review sentences for reasonableness, applying an abuse of

discretion standard. Gall v. United States, 128 S. Ct. 586, 597-98

(2007); United States v. Pauley, 511 F.3d 468, 473-74 (4th Cir.

2007).     When sentencing a defendant, a district court must: (1)

properly calculate the guideline range; (2) determine whether a

sentence within that range serves the factors set out in 18

U.S.C.A.    §   3553(a)    (West    2000   &   Supp.     2007);   (3)   implement

mandatory statutory limitations; and (4) explain its reasons for

selecting a sentence.            Pauley, 511 F.3d at 473.         In the Fourth


                                      - 4 -
Circuit, “[a] sentence within the proper Sentencing Guidelines

range is presumptively reasonable.”           United States v. Allen, 491

F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 127 S.

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

for within-guidelines sentence).             This presumption can only be

rebutted by showing that the sentence is unreasonable when measured

against the § 3553(a) factors. United States v. Montes-Pineda, 445

F.3d 375, 379 (4th Cir. 2006).

           Here,    the   district    court     correctly   calculated   the

guideline range, treated the guidelines as advisory, and considered

the § 3553(a) factors generally. The court specifically considered

“the nature and circumstances of the offense” and Polk’s “argument

as to his history and characteristics,” 18 U.S.C.A. § 3553(a)(1),

as well as his argument concerning disparity in sentencing, id. at

§ 3553(a)(6).      The court then imposed concurrent prison terms of

235 months, the bottom of the guideline range for one count, and

ten years, the statutory minimum, for the second count.                   We

conclude that the 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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