                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5043


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TADARIAN RESHAWN NEAL,

                Defendant - Appellant.



                            No. 09-5044


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TADARIAN RESHAWN NEAL,

                Defendant - Appellant.




Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte.     Frank D. Whitney,
District Judge. (3:09-cr-00017-FDW-DCK-1; 3:04-cr-00073-FDW-1)


Submitted:   December 13, 2011            Decided:   December 16, 2011


Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North
Carolina, for Appellant.      Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            In     these    consolidated       cases,     Tadarian    Reshawn       Neal

appeals     both     the      168-month        sentence     imposed        after     his

convictions on all counts of a four-count indictment, as well as

the   twenty-four-month           consecutive      sentence    imposed       for    his

violation    of    the     conditions     of   supervised     release      that     were

imposed on his 2005 federal felon-in-possession conviction.                          We

affirm.

            Neal first claims that his conviction under 18 U.S.C.

§ 922(g)(1) (2006) for possessing a firearm as a convicted felon

is invalid because it is based on a 2005 felon-in-possession

conviction        which      is      itself     infirm      under     our      recent

jurisprudence.           Our review is de novo.             See Suter v. United

States, 441 F.3d 306, 310 (4th Cir. 2006).

            Pertinent       to    this   appeal,    § 922(g)(1)      prohibits      the

possession of a firearm by any person “who has been convicted in

any court of, a crime punishable by imprisonment for a term

exceeding one year.”              18 U.S.C. § 922(g)(1).         At the time of

Neal’s conviction and sentence, we determined whether a prior

conviction was punishable by more than a year’s imprisonment by

considering       “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).           After Neal was sentenced, however, Harp was

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overruled    by     the      en    banc    decision    in     Simmons.         See    United

States v. Simmons, 649 F.3d 237, 241 (4th Cir. 2011) (en banc).

Simmons held that a prior North Carolina offense was punishable

for a term exceeding one year only if the particular defendant

before the court had been eligible for such a sentence under the

applicable statutory scheme, taking into account his criminal

history and the nature of his offense.                            Id. at 247; see also

N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting forth North

Carolina’s structured sentencing scheme).

             Neal      now    argues       that     both    of     the     North   Carolina

convictions that served as the predicates for his 2005 felon-in-

possession    conviction           are    not   “felonies”         under    the    rationale

announced in Simmons.              (J.A. 878-79).          As a result, claims Neal,

his 2005 felon-in-possession conviction is invalid.                                According

to   Neal,     because            his     current    § 922(g)(1)           conviction    is

predicated        on      the       now     infirm         2005     felon-in-possession

conviction, his present § 922(g)(1) conviction cannot stand.

             Neal is mistaken.               This court squarely rejected this

line of argument in United States v. Kahoe, 134 F.3d 1230 (4th

Cir. 1998), holding that any subsequently-realized invalidity of

a predicate felony conviction is immaterial to a § 922(g)(1)

prosecution, as long as the prior conviction was in effect on

the date that the defendant possessed the firearm.                           Id. at 1235.

In this case, there is no dispute that Neal’s 2005 felon-in-

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possession conviction was both punishable by more than a year

and was in effect on August 18, 2008, when he possessed the

sawed-off shotgun that is the subject of his current § 922(g)(1)

conviction.         As a result, his current § 922(g)(1) conviction is

proper, notwithstanding the possible effects of Simmons on his

previous conviction.

              Neal next asserts that, because Simmons suggests that

his    2005    felon-in-possession               conviction      was     in    error,       the

district      court      erred    in       imposing   a   prison      sentence       for    his

violation of the conditions of supervised release attendant to

that offense.            But, even assuming that Neal has not waived this

strand of argument, it amounts to an attempt to collaterally

attack his 2005 felon-in-possession conviction.                          Of course, “the

validity      of    an    underlying        conviction    or    sentence       may    not    be

collaterally         attacked         in     a   supervised          release    revocation

proceeding         and    may    be    challenged      only     on    direct    appeal       or

through a habeas corpus proceeding.”                      United States v. Warren,

335    F.3d        76,     78     (2d        Cir.     2003)     (collecting          cases).

Consequently, we can only conclude that Neal’s present claims,

which seek to elude the sentence imposed upon his violation of

the conditions of supervised release by vacating the underlying

2005   felon-in-possession              conviction,       are   not     properly      before

this court.



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               Third, Neal attacks his convictions for obstruction of

justice,       in    violation       of    18   U.S.C.       §    1503    (2006),      and   for

witness    tampering,          in     violation        of    18    U.S.C.     §    1512(b)(1)

(2006), on the ground that the indictment failed to set forth

sufficient          factual    allegations          regarding       the    nature       of   the

offenses.       We agree with the Government that Neal waived these

challenges to the indictment by failing to raise them in the

district court prior to trial.                        See Fed. R. Crim. P. 12(e);

United States v. Robinson, 627 F.3d 941, 957 (4th Cir. 2010).

               Finally,       Neal    argues        that    his   punishments          for   both

obstruction of justice and witness tampering violate principles

of double jeopardy, given that they are predicated on the same

underlying conduct.             We review questions of double jeopardy de

novo.     See United States v. Brown, 202 F.3d 691, 703 (4th Cir.

2000).     “Where the issue is solely that of multiple punishment,

as opposed to multiple prosecutions, the Double Jeopardy Clause

does no more than prevent the sentencing court from prescribing

greater    punishment          than       the   legislature         intended.”           United

States v. Studifin, 240 F.3d 415, 418 (4th Cir. 2001) (internal

quotation       marks     omitted).             “The       same    conduct    can       support

convictions and sentencing under two different federal statutes

as long as each statute requires proof of an element that the

other does not.”              United States v. Johnson, 219 F.3d 349, 358

(4th    Cir.    2000).         Moreover,        “[i]f       the    elements       of   the   two

                                                6
statutes do not necessarily overlap, then multiple punishments

are presumed to be authorized absent a clear showing of contrary

Congressional intent.”              Id. at 359 (internal quotation marks

omitted).

              In     this   case,    each      offense    of     conviction      requires

proof    of    an    element      that   the      other   does    not.        See   United

States v. LeMoure, 474 F.3d 37, 44 (1st Cir. 2007).                              Neal has

made     no    showing      defeating       the    presumptive         availability     of

multiple       punishments        for    these       separate      offenses.           His

punishment under both § 1503 and § 1512 for the same underlying

course of conduct therefore poses no double jeopardy concerns.

              Accordingly, we affirm the judgments of the district

court.        We dispense with oral argument because the facts and

legal    contentions        are     adequately       presented     in     the    material

before    the       court   and    argument       will    not    aid    the     decisional

process.


                                                                                  AFFIRMED




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