             Vacated by Supreme Court, November 1, 2010



                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 09-4639


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SANDAKO MESHAWN BRANDON,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:02-cr-00193-JAB-1)


Submitted:   April 16, 2010                 Decided:   April 30, 2010


Before TRAXLER, Chief Judge,       WILKINSON,   Circuit   Judge,   and
HAMILTON, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Christopher R. Clifton, GRACE, TISDALE & CLIFTON, P.A., Winston-
Salem, North Carolina, for Appellant.       Anna Mills Wagoner,
United States Attorney, Sandra J. Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Sandako Meshawn Brandon was indicted on one count of

conspiracy to distribute more than fifty grams of cocaine base,

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2006),

and distribution of 116.8 grams of cocaine base, in violation of

21   U.S.C.     § 841(a)(1),         (b)(1)(A).         Following      a    jury      trial,

Brandon was sentenced to 262 months’ imprisonment.                          On appeal in

2004,   we     affirmed      Brandon’s      conviction,     but     remanded          to    the

district court for resentencing as a career offender.                                 United

States v. Brandon, 363 F.3d 341 (4th Cir. 2004).                       On remand, the

district court sentenced Brandon to 360 months’ imprisonment.

We affirmed, United States v. Brandon, 153 Fed. App’x 245 (4th

Cir.    Nov.    21,    2005);     however,       upon    Brandon’s         filing      of    a

rehearing       petition,       we     again      vacated     and          remanded         for

resentencing.         United States v. Brandon, 214 Fed. App’x 315 (4th

Cir. Jan. 23, 2007).              On remand, the district court reduced

Brandon’s sentence to 294 months.                Brandon appealed a third time

and we remanded to the district court for resentencing in light

of Kimbrough v. United States, 552 U.S. 85 (2007).                          The district

court    further       reduced       Brandon’s     sentence       to        240       months’

imprisonment.           On    appeal,       counsel      raises     two      intertwined

arguments:      that    Brandon       was   improperly      designated            a   career

offender and that the district court erred in imposing the 240-



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month sentence rather than a sentence eliminating the crack-to-

powder disparity.         Finding no reversible error, we affirm.

            A defendant is designated a career offender if: (1) he

was at least eighteen years old at the time of the instant

offense; (2) the instant offense is a felony crime of violence

or controlled substance offense; and (3) he “has at least two

prior felony convictions of either a crime of violence or a

controlled     substance         offense.”           U.S.    Sentencing          Guidelines

Manual (“USSG”) § 4B1.1(a) (2002).                       The prior offenses must be

punishable     by    a    term   of     imprisonment        greater       than    one    year.

USSG § 4B1.2(a).          A crime is punishable by a term greater than

one year “if any defendant charged with that crime would receive

a   sentence    of       more    than    one       year,”    which    requires          us   to

“consider the maximum aggravated sentence that could be imposed

for that crime upon a defendant with the worst possible criminal

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

2005).

            In 1997, Brandon was convicted in North Carolina state

court of common law robbery, which Brandon does not dispute was

a crime of violence, and was sentenced to eleven to fourteen

months’ imprisonment, suspended.                   In 1998, Brandon was convicted

of possession with intent to distribute a Schedule II controlled

substance      and       was     sentenced          to    eight      to     ten     months’

imprisonment.        However, that conviction is a Class H felony, see

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N.C. Gen. Stat. § 90-95(b)(1) (2007), and is thus punishable by

a maximum aggravated sentence of thirty months’ imprisonment.

N.C.       Gen.    Stat.      § 15A-1340.17(c),       (d)    (2007).         Therefore,

Brandon      has    been      convicted   of    the    requisite       two   predicate

offenses qualifying him as a career offender.

               Counsel argues, however, that the 1998 conviction is

not a predicate offense because Brandon was sentenced to less

than a year imprisonment.             While acknowledging that Harp is the

law of the circuit, counsel argues that the court should revisit

that decision in light of the Sixth Circuit’s recent decision in

United States v. Pruitt, 545 F.3d 416 (6th Cir. 2008). *                      However,

“a     panel       of    this    court    cannot      overrule,      explicitly      or

implicitly, the precedent set by a prior panel of this court.

Only the Supreme Court or this court sitting en banc can do

that.”       Scotts Co. v. United Industries Corp., 315 F.3d 264, 271

n.2    (4th       Cir.     2002)    (internal       quotation     marks      omitted).

Clearly,       then,     we   may   not   revisit     Harp   based     on    the   Sixth

Circuit’s contrary, non-binding, position.




       *
       In Pruitt, the Sixth Circuit, in assessing whether the
defendant’s North Carolina convictions were punishable by more
than one year imprisonment, found that United States v.
Rodriquez, ___ U.S. ___, 128 S. Ct. 1783 (2008), “persuades us
that it is necessary to consider the defendant’s particular
prior record level – and not merely the worst prior record
level.” 545 F.3d at 424.



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            Counsel’s remaining argument, that the district court

failed to consider the sentencing disparity between crack and

powder     cocaine      in      sentencing       Brandon      to    240     months’

imprisonment, is also meritless.                 As discussed above, Brandon

has a prior felony drug conviction, which mandates a twenty-year

minimum sentence.         21 U.S.C. § 841(b)(1)(A).            Neither Kimbrough

nor United States v. Spears, 129 S. Ct. 840 (2009), gives the

district court authority to depart below the statutory mandatory

minimum.       Moreover, the Government has not moved to allow the

district    court    to      impose   a       sentence   below     the    statutory

mandatory minimum; thus, the district court had no authority to

depart below the minimum sentence.               18 U.S.C. § 3553(e) (2006);

Melendez v. United States, 518 U.S. 120, 125-26 (1996).

            Accordingly, we affirm the judgment of 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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