                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4675



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JOSE LUIS BOTELLO,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:05-cr-00406)


Submitted:   January 31, 2007              Decided:   March 5, 2007


Before WILLIAMS, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, William C. Ingram,
Jr., First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Paul A. Weinman, Assistant United States Attorney,
Winston-Salem, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Jose Luis Botello entered a conditional plea of guilty to

one count of possession of a firearm by a felon, in violation of 18

U.S.C. §§ 922(g)(1), 924(a)(2) (2000).    Botello was sentenced by

the district court to fifty-five months’ imprisonment.     We find no

error and affirm Botello’s conviction.

          On   appeal,   Botello   contends   his   predicate   state

conviction did not satisfy § 922(g)(1) as a matter of law.        He

reasons that, under North Carolina law, his maximum sentence was

less than twelve months because no aggravating factors were either

admitted or found by a jury beyond a reasonable doubt.     See North

Carolina v. Allen, 615 S.E.2d 256, 265 (N.C. 2005) (holding, after

Blakely v. Washington, 542 U.S. 296 (2004), statutory maximum is

the maximum a defendant can face in light of his criminal history

and the facts found by a jury or admitted by defendant).    However,

as Botello concedes, his argument is foreclosed by United States v.

Harp, 406 F.3d 242, 246-47 (4th Cir.), cert. denied, 126 S. Ct. 297

(2005), which holds that United States v. Jones, 195 F.3d 205 (4th

Cir. 1999), is still viable after Blakely and United States v.

Booker, 543 U.S. 220 (2005), and reaffirms that a prior North

Carolina conviction satisfies § 922(g)(1) if any defendant charged

with that crime could receive a sentence in excess of one year.

Thus, because it is undisputed that a sentence of over twelve

months could be imposed on a defendant convicted of possession with


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intent to distribute marijuana in North Carolina, Botello’s prior

conviction   was   properly   considered   a   predicate   felony   under

§ 922(g)(1).

          Accordingly, we affirm Botello’s 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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