                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4249


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MICHAEL KENTA DAVIS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
District Judge. (7:07-cr-00086-1)


Submitted:    November 19, 2008            Decided:   December 12, 2008


Before KING, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Geoffrey W. Hosford, HOSFORD & HOSFORD, P.C., Wilmington, North
Carolina, for Appellant.    George E. B. Holding, United States
Attorney, Anne M. Hayes, Banumathi Rangarajan, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Michael Kenta Davis appeals the 300-month sentence the

district court imposed after he pled guilty to possession with

intent to distribute more than 50 grams of cocaine base, on or

about April 30, 2007, in violation of 21 U.S.C. § 841(a)(1)

(2006).       Davis        argues     that       the   district     court      erred    in

sentencing him as a career offender pursuant to U.S. Sentencing

Guidelines Manual (“USSG”) § 4B1.1.                    The enhancement was based,

in part, upon two convictions that Davis received in 2006: (1) a

conviction in Maryland state court for possession with intent to

distribute    marijuana,        for    which       Davis   failed      to   appear     for

sentencing, resulting in issuance of a bench warrant for his

arrest; and (2) a conviction in South Carolina state court for

possession with intent to distribute marijuana, for which he was

sentenced     to    three     years’        imprisonment,       all    of    which     was

suspended,    and     30    months’     probation.         He     contends     that    the

convictions in 2006 did not disrupt his ongoing criminal conduct

because he was never imprisoned for them, and because he was

never sentenced for the conviction in Maryland and could still

move    to    withdraw       his      guilty       plea    prior      to    sentencing.

Accordingly, he avers the state convictions did not constitute

prior     convictions       under     the    Guidelines     but       rather    relevant

conduct associated with his federal offense.



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              In assessing whether a district court properly applied

the Guidelines, we review the lower court’s factual findings for

clear error and its legal conclusions de novo.                               United States v.

Chacon, 533 F.3d 250, 253 (4th Cir. 2008).                                  The provisions of

USSG § 4A1.2 are applicable to the counting of prior convictions

for career offender purposes.                      USSG § 4B1.1 cmt. n.3. “The term

‘prior      sentence’        means      any     sentence          previously      imposed        upon

adjudication of guilt, whether by guilty plea, trial, or plea of

nolo contendere, for conduct not part of the instant offense.”

USSG    §   4A1.2(a)(1)           (emphasis          added).       The     term   “sentence        of

imprisonment” is separately defined in USSG § 4A1.2(b).

              Conduct        is    part       of     the      instant      offense     if    it    is

relevant      conduct        under           guideline          section     1B1.3.     See       USSG

§ 4A1.2(a)(1)         cmt.    n.1.           Under       guideline      section    1B1.3(a)(2),

relevant     conduct      includes            acts       that    were     part    of   the   “same

course of conduct or common scheme or plan” as the offense of

conviction when the offenses are the type which would be grouped

under § 3D1.2(d).             However, as noted by Application Note 8 to

USSG § 1B1.3, “offense conduct associated with a sentence that

was    imposed    prior       to       the    acts       or   omissions      constituting         the

instant      federal     offense         (the        offense       of     conviction)       is    not

considered       as   part        of    the    same       course     of    conduct     or    common

scheme or plan as the offense of conviction.”                                When a defendant

has been convicted of an offense, but not yet sentenced, the

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conviction shall be countable if a sentence resulting from that

conviction        otherwise             would        be     countable.                  See     USSG        §

4A1.2(a)(4).          A defendant is “convicted of an offense” under

this    provision         when      guilt       has       been       established,         whether          by

guilty plea, trial, or plea of nolo contendere.                                    Id.

             We       hold       that    the       district          court        did    not     err       in

sentencing       Davis       as     a   career        offender            based    upon       his     prior

convictions       in      2006.         The     guidelines            do    not    require          that    a

“sentence       of    imprisonment”             be       imposed      in     order       for    a     prior

conviction       to    be     counted         as     part       of    a    defendant’s          criminal

history.        An offense for which a defendant has been convicted,

by     guilty     plea       or     otherwise,            but    not        yet    sentenced,          may

nonetheless          be      counted        for          purposes          of     determining          the

defendant’s criminal history.                         The guidelines do not indicate

that counting a prior conviction resulting from a guilty plea

can    be   impacted        by    the     possibility            of       withdrawing         the     plea.

Moreover, we note that the state offenses at issue each occurred

in    different        states       from      each        other       and       from     the     federal

offense, and were separated in time from the federal offense by

eleven months and eighteen months, respectively.                                         Accordingly,

the district court properly viewed the state offenses as prior

offenses        rather       than       relevant          conduct          associated          with     the

federal offense.



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           We therefore affirm the district court’s judgment.       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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