                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4470


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MALCOLM ROLAND ALLEN,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:08-cr-00222-RDB-1)


Submitted:   March 12, 2014                 Decided:   March 21, 2014


Before WILKINSON, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David I. Schoen, DAVID I. SCHOEN, ATTORNEY AT LAW, Montgomery,
Alabama, for Appellant.      Rod J. Rosenstein, United States
Attorney,   Christopher  J.   Romano,  Assistant United States
Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Malcolm     Roland    Allen          pled    guilty       to     one   count    of

possession     with   intent        to     distribute              cocaine       base    and

methylenedioxy-methamphetamine             (“MDMA”),          in     violation      of   21

U.S.C. § 841(a)(1) (2006), and was sentenced to 216 months in

prison.       Allen   asserts       that       his     plea        was    unknowing      and

involuntary    because   the    indictment            against       him    was   allegedly

duplicitous.    Allen also argues that the district court erred in

imposing his sentence because:             (1) he asserts that under United

States v. Simmons, 649 F.3d 237 (4th Cir. 2011), he should not

have been sentenced as a career offender; (2) the district court

refused to apply the Fair Sentencing Act (“FSA”) and Amendment

750 at his “re-sentencing[;]” and (3) he asserts he should be

re-sentenced in light of the Supreme Court’s holding in Alleyne

v. United States, 133 S. Ct. 2151 (2013).                          We have considered

Allen’s arguments and find no reversible error.

          For    instance,     we    reject       Allen’s          assertion      that   the

indictment against him was duplicitous because it charged in a

single count the possession with intent to distribute two types

of narcotics (i.e., cocaine base and MDMA), in violation of his

Fifth and Sixth Amendment rights.               It is well-established that a

valid guilty plea waives all non-jurisdictional defects in the

indictment, including a duplicity challenge.                              See Tollett v.

Henderson, 411 U.S. 258, 267 (1973) (holding that a valid guilty

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plea     waives       non-jurisdictional      defects);       United    States    v.

Cotton, 535 U.S. 625, 631 (2002) (defects in the indictment are

not jurisdictional); see also United States v. Moloney, 287 F.3d

236, 239 (2d Cir. 2002).            Because we find that Allen’s guilty

plea was valid, we reject his duplicity argument and affirm his

conviction.

              We also affirm Allen’s sentence.            This court reviews a

criminal        sentence,      “whether       inside,     just     outside,       or

significantly outside the Guidelines range,” for reasonableness,

“under    a     deferential    abuse-of-discretion         standard.”        United

States v. King, 673 F.3d 274, 283 (4th Cir.), cert. denied, ___

U.S. ___, 133 S. Ct. 216 (2012); see Gall v. United States, 552

U.S. 38, 51 (2007).           The first step in this review requires us

to   ensure     that    the   district    court   committed      no     significant

procedural error.           United States v. Evans, 526 F.3d 155, 162

(4th     Cir.     2008).      Procedural      errors     include       “failing   to

calculate       (or    improperly   calculating)        the   Guidelines     range,

treating the Guidelines as mandatory, failing to consider the

[18 U.S.C. § 3553(a) (2012)] factors, selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the

chosen sentence — including an explanation for any deviation

from the Guidelines range.”          Gall, 552 U.S. at 51.

              “[I]f a party repeats on appeal a claim of procedural

sentencing error . . . which it has made before the district

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court,      we    review     for   abuse   of    discretion”          and   will     reverse

unless we conclude “that the error was harmless.”                           United States

v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010).                           For instance, if

“an aggrieved party sufficiently alerts the district court of

its responsibility to render an individualized explanation” by

drawing arguments from § 3553 “for a sentence different than the

one ultimately imposed,” the party sufficiently “preserves its

claim.”          Id.   at   578.       However,       we    review    unpreserved        non-

structural sentencing errors for plain error.                           Id. at 576–77.

If, and only if, we find the sentence procedurally reasonable

can we consider the substantive reasonableness of the sentence

imposed.         United States v. Carter, 564 F.3d 325, 328 (4th Cir.

2009).

                 Although      Allen     challenges           his     career        offender

classification on several grounds, we reject his argument that

he    was    improperly        classified       as    a      career    offender.          For

instance, we reject Allen’s argument that his prior narcotics

conviction was not a proper career offender predicate because it

was    allegedly       not     “punishable       by        imprisonment       for    a   term

exceeding        one   year”    under    Simmons.           Allen’s    prior        narcotics

conviction,         rather     than     being        based     on     North     Carolina’s

statutory sentencing scheme as was the conviction at issue in

Simmons, was a violation of Maryland law, for which the maximum

penalty was five years.             The fact that Allen served less than a

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year in jail is not dispositive of the issue.                                    Cf. United States

v.   Kerr,        737    F.3d    33,       38    (4th        Cir.        2013)       (“Following       our

decision in Simmons, we have rejected defendants’ arguments that

they lack the requisite predicate felonies because the actual

sentence they received under North Carolina law was less than a

year of imprisonment.”), pet. for cert. filed, Feb. 25, 2014

(No. 13-8839).            We have considered Allen’s arguments pertaining

to his career offender classification and discern no reversible

error in the district court’s classification.

                 We     also    discern         no    error         in    the    district         court’s

failure         to    apply     the    FSA      and      Amendment             750    in     determining

Allen’s sentence.               It is well-established that the FSA does not

apply retroactively to defendants, like Allen, whose criminal

conduct         and   sentence        pre-dated          the    statute. 1             See    Dorsey    v.

United      States,       ___    U.S.      ___,       132      S.    Ct.       2321,       2331   (2012);

United      States       v.    Allen,      716       F.3d      98,       107    (4th       Cir.),   cert.

denied, 133 S. Ct. 2819 (2013).                              Although the district court

entered an amended criminal judgment after the FSA’s effective

date       to    allow    Allen       to    file         a   direct        appeal,         the    amended

judgment was a remedy in Allen’s habeas proceeding and did not


       1
        Although Amendment 750 was made retroactive, Allen’s
career offender status requires that his offense level remain as
calculated at his original sentencing.       See U.S. Sentencing
Guidelines Manual (“USSG”) § 4B1.1(b) (2012).



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follow a full re-sentencing.        See United States v. Hadden, 475

F.3d 652, 661 & n.9 (4th Cir. 2007) (recognizing that when a

district court enters an amended judgment at the end of a habeas

proceeding as a way to remedy counsel’s ineffective assistance,

this action only “corrects” the defect in the prior proceedings

and does not necessarily amount to a full re-sentencing).

            Moreover, because Allen was sentenced to a term well

above the post-FSA mandatory minimum applicable to his crime,

and since a review of the transcript from Allen’s sentencing

hearing establishes that the then-applicable ten-year statutory

mandatory   minimum   had   no   influence   on   the   district   court’s

ultimate sentencing determination, we find that any error in the

district court’s failure to apply the FSA at re-sentencing would

be harmless.    See United States v. Montes-Flores, 736 F.3d 357,

369-71 (4th Cir. 2013) (reiterating that procedural sentencing

errors are subject to harmlessness review and explaining that an

error is harmless if the Court can determine that “the district

court would have reached the same result even if it had decided

the . . . issue the other way” and that the resulting “sentence

would be reasonable even if the . . . issue had been decided in

the defendant’s favor”) (internal quotation marks and citations

omitted).




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          We have considered the parties’ arguments and find no

reversible error by the district court. 2   Accordingly, we affirm

the district court’s amended judgment.      We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

                                                          AFFIRMED




     2
       We reject Allen’s argument that his sentence violates
Alleyne. Allen’s argument to the contrary, his career offender
status as found by the district court did not increase the
statutory mandatory minimum sentence applicable to his crime.
See USSG § 4B1.1 (2012). Thus, the facts found by the district
court that allowed Allen to be designated a career offender were
not required to be included in the indictment against him and
proven beyond a reasonable doubt.    See Alleyne, 133 S. Ct. at
2155, 2163-64 (holding that any fact that increases a statutory
mandatory minimum is an element of the offense and must be
submitted to the jury and found beyond a reasonable doubt).



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