                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4834


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HERBERT EUGENE PULLIAM,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:10-cr-00445-NCT-2)


Submitted:   April 27, 2012                   Decided:   June 8, 2012


Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Graham Tod Green, Assistant
United States Attorney, Randall Stuart Galyon, OFFICE OF THE
UNITED   STATES ATTORNEY,  Greensboro,  North  Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Herbert Eugene Pulliam appeals his conviction and 156-

month    sentence       following    his   guilty        plea       to   conspiracy      to

distribute crack cocaine.            On appeal, Pulliam’s counsel filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

asserting that there are no meritorious grounds for appeal but

questioning whether Pulliam’s prior conviction in North Carolina

for possession with intent to manufacture a controlled substance

qualifies     as    a    predicate    felony       offense       for      the      enhanced

sentence    and    for    purposes    of   the     career       offender        Guideline.

Pulliam was advised of his right to file a pro se supplemental

brief but did not file one.           Finding no error, we affirm.

            Pulliam        questions           whether        his        sentence       was

procedurally reasonable.             In reviewing a sentence, this court

must first ensure that the district court did not commit any

“significant       procedural    error,”        such     as   failing         to   properly

calculate the applicable Guidelines range, failing to consider

the 18 U.S.C. § 3553(a) (2006) factors, or failing to adequately

explain the sentence.           Gall v. United States, 552 U.S. 38, 51

(2007).

            Pulliam challenges the computation of his Guidelines

range.      Because       the   state      drug     conviction           at    issue    was

consolidated with another crime for sentencing purposes, Pulliam

asserts that a reviewing court is not able to determine with

                                           2
certitude     whether        his   actual          sentence       for       the    state    drug

conviction amounted to more than one year.                         Citing United States

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

maintains     that      he   might      have       received       an    actual       custodial

sentence of one year or less for that offense and therefore the

conviction should not qualify as a predicate felony offense for

the career offender enhancement.

            Pulliam’s         argument         rests     on        a     misinterpretation

of Simmons.        The rule announced in Simmons does not compel us to

look to the actual sentence imposed on a defendant.                                See id. at

243; see also United States v. Thompson, No. 11-5059, 2012 WL

1592991, at *2 (“Pursuant to Simmons, in evaluating whether a

defendant’s prior state conviction qualifies as a felony under

the   ACCA,      the     actual      sentence         imposed          is     irrelevant.”).

Instead, we focus on the maximum sentence that the defendant

before the court could have received.                         Here, Pulliam does not

dispute that he was eligible for a sentence exceeding one year.

He    accordingly        fails       to     raise       a         successful         challenge

under Simmons.

            Upon       review,     we     conclude      that       the       district       court

committed     no     procedural      or     substantive           error       in    sentencing

Pulliam     to     156-months’       imprisonment,            a    sentence         below     the

applicable Sentencing Guidelines range.                           See United States v.

Lynn, 592 F.3d 572, 577 (4th Cir. 2010) (providing standard of

                                               3
review); see also United States v. Jackson, 598 F.3d 340, 345

(7th   Cir.)     (“A     below-guidelines            sentence,      like    a   within-

guidelines     one,     is   presumed     reasonable         against    a   defendant’s

challenge that it is too high.”), cert. denied, 131 S. Ct. 435

(2010).

            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm the district court’s judgment.                          This court

requires that counsel inform Pulliam, in writing, of his right

to petition the Supreme Court of the United States for further

review.   If    Pulliam        requests    that      a   petition      be   filed,     but

counsel   believes       that     such    a       petition    would    be   frivolous,

counsel   may    move     in    this     court     for   leave   to    withdraw       from

representation.         Counsel’s motion must state that a copy thereof

was served on Pulliam.            We dispense with oral argument because

the facts and legal conclusions are adequately presented in the

materials      before    the     court    and      argument    would     not    aid    the

decisional process.



                                                                                AFFIRMED




                                              4
