                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-4275


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TAYARI RAFIKI MITCHELL,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:11-cr-00174-CCE-1)


Submitted:   January 30, 2017             Decided:   February 9, 2017


Before AGEE and WYNN, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.


Stacey D. Rubain, QUANDER & RUBAIN, Winston-Salem, North
Carolina, for Appellant.   Ripley Rand, United States Attorney,
Angela H. Miller, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      In 2011, Tayari Rafiki Mitchell pled guilty to possession

of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1),

and   possession       with   intent      to   distribute       cocaine     base,    in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B).                          The district

court sentenced him as an armed career criminal pursuant to 18

U.S.C.   § 924(e),      and   as    a    career    offender      pursuant    to     U.S.

Sentencing Guidelines Manual § 4B1.1.               In 2012, Mitchell filed a

motion to vacate, set aside, or correct his sentence under 28

U.S.C. § 2255.         The district court granted Mitchell’s motion

after    the      Government       conceded       that     Mitchell       should     be

resentenced because he no longer qualified as an armed career

criminal.         However,    on    resentencing         the    court    found     that

Mitchell       still   merited     the    career    offender      enhancement       and

imposed a prison sentence of 160 months.                       On appeal, Mitchell

challenges the court’s career offender determination.

      We review de novo a district court’s determination that a

prior state conviction qualifies as a career offender predicate.

United States v. Jones, 667 F.3d 477, 482 (4th Cir. 2012).                            A

defendant is a career offender if (1) he was at least eighteen

years    old    when   the    instant     offense    was       committed,    (2)    the

instant offense is a felony and is either a crime of violence or

a controlled substance offense, and (3) he has at least two

prior felony convictions for crimes of violence or controlled

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substance offenses.               See U.S.S.G. § 4B1.1(a) (2015).                          The third

requirement is satisfied where “(1) the defendant has previously

sustained at least two felony convictions of either a crime of

violence     or       a    controlled          substance             offense;        and    (2)     the

sentences     for         at     least       two        of     the     aforementioned         felony

convictions are counted separately.”                                 United States v. Davis,

720   F.3d   215,         217    (4th       Cir.    2013)       (internal       quotation         marks

omitted); see U.S.S.G. § 4B1.2(c).

      In his counseled brief, Mitchell concedes that one of his

prior convictions — North Carolina felony assault with a deadly

weapon     with       intent       to        kill       inflicting          serious        injury    —

constitutes       a       career       offender          predicate,          but     disputes       the

district court’s finding that his prior conviction for North

Carolina     felony        possession          with          intent    to     sell    and    deliver

(“PWISD”) cocaine also qualifies as a predicate.                                     Specifically,

Mitchell     contends           that    a    sentence         was     never    imposed      for     his

PWISD cocaine conviction, and, therefore, it cannot be counted

as a prior conviction for a controlled substance offense.

      Mitchell’s          PWISD    cocaine          conviction         was     consolidated         for

judgment with several other convictions, the most serious of

which was a conviction for cocaine trafficking that carried a




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maximum penalty of 15 years’ imprisonment. 1                        Because the maximum

sentence for a PWISD cocaine conviction was 10 years, Mitchell

asserts that his sentence of 12 years must have been imposed

only as to the cocaine trafficking conviction.

       In support of his argument, Mitchell seeks to expand the

holding of United States v. Davis, in which we found that a

consolidated             sentence      under     the     North     Carolina     Structured

Sentencing Act results in a single sentence that may serve only

as one sentence for purposes of determining whether a defendant

is a career offender.                 720 F.3d at 218-20.            Mitchell, however,

was sentenced before the October 1, 1994 effective date of the

Structured Sentencing Act’s “consolidated sentence” provision,

N.C. Gen. Stat. § 15A-1340.15.                   At the time of Mitchell’s state

sentence,             North   Carolina      defendants      like     Mitchell      received

separate         sentences      in    offenses       “consolidated    for     sentencing.”

Davis,          720    F.3d   at     219.      Moreover,    a    sentence      imposed    on

convictions consolidated for judgment was based not only on the

maximum sentence for the most serious crime of conviction, but

also       on    the     presumptive        sentences     assigned    to    each    of   the

convictions.                  N.C.     Gen.      Stat.     § 15A-1340.4(a)          (1988).



       1Because the Government has conceded that the state
conviction for cocaine trafficking is not a proper predicate
offense, we do not consider this as a potential career offender
predicate.



                                                 4
Therefore,         we    find       Mitchell’s      reliance      on    Davis     unavailing. 2

Further, his reference to N.C. Gen. Stat. § 15A-1340.4(a) (1988)

does not rescue his argument.

       As the district court noted, it appears from the face of

the    judgment         that    the    state     sentence       was     imposed       as    to     all

convictions listed therein.                      Specifically, the state judgment

states that the court “Orders the above offenses be consolidated

for    judgment         and    the    defendant      be    imprisoned       for       a    term    of

Twelve (12) Years.”                 None of the arguments advanced by Mitchell

renders this judgment any less clear.                           In addition, there is no

doubt       that    this       sentence       was    counted       separately             from    the

sentence       resulting            from     Mitchell’s         other    qualifying              prior

conviction.         See U.S.S.G. § 4B1.2(c).

       Accordingly,            we    affirm    Mitchell’s        judgment       and       deny     his

request to file a pro se supplemental brief.                              We dispense with

oral       argument      because       the     facts      and    legal     contentions            are




       2
       We also note that, were Davis applicable to Mitchell’s
case, it would not save his claim.     Davis states that “where a
defendant receives a ‘consolidated sentence’ (or ‘consolidated
judgment’) under North Carolina law, it is one sentence and
absent   another   qualifying   sentence,   the   enhancement   is
inapplicable.”    720 F.3d at 219.      Here, the district court
counted Mitchell’s sentence for PWISD cocaine, which was
consolidated   for   judgment   with   his   cocaine   trafficking
conviction, as a single prior sentence, consistent with Davis.



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adequately   presented   in   the   materials   before   this   court   and

argument would not aid the decisional process.

                                                                 AFFIRMED




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