                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5061


UNITED STATES OF AMERICA,

                       Plaintiff – Appellee,

          v.

ANTHONY SCOTT LEACH,

                       Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (5:09-cr-00016-RLV-DSC-1)


Submitted:   September 13, 2011        Decided:   September 15, 2011


Before AGEE, DAVIS, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Randolph Marshall Lee, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Thomas A. O’Malley,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Anthony     Scott      Leach        appeals   from     his   262-month

sentence entered pursuant to his guilty plea to possession with

intent to distribute crack cocaine.                   On appeal, Leach asserts

that   his   sentence       is    procedurally       unreasonable     because     the

district court incorrectly found that he was a career offender.

We affirm.

             A defendant is a career offender if he was at least

eighteen years old when the instant offense was committed, the

instant offense is a felony and is either a crime of violence or

a drug offense, and he has at least two prior felony convictions

for crimes of violence or drug offenses.                      See U.S. Sentencing

Guidelines Manual § 4B1.1(a) (2009).                   For purposes of career

offender status, the Guidelines define a felony conviction as

“any     offense    under        federal    or     state   law,     punishable    by

imprisonment for a term exceeding one year,” regardless of the

actual    sentence     imposed.       USSG       § 4B1.2(b)    &   comment.   (n.1).

Leach’s only claim on appeal is that his prior North Carolina

conviction    for    “Possess       With   Intent     To   Manufacture,    Sell   or

Deliver Cocaine” was not a qualifying felony because he received

only a nine-to-eleven-month sentence.

             Under the North Carolina Structured Sentencing Act,

sentences are contingent on two factors:                   the designated “class

of offense” and the offender’s “prior record level.”                      N.C. Gen.

                                            2
Stat. § 15A-1340.13(b) (2009).               The parties agree that Leach’s

prior conviction was a Class H offense and that his prior record

level was IV.         The parties further agree that, as there were no

findings of mitigating or aggravating circumstances, Leach faced

a minimum sentencing range of nine-to-eleven months.                      Id. at

§ 15A-1340.17(c).         His corresponding maximum sentencing range

was, therefore, eleven-to-fourteen months, depending upon the

minimum    sentence      chosen    by   the    sentencing    court.       Id.   at

§ 15A-1340.17(d).        Therefore, while Leach was only sentenced to

nine-to-eleven months, his offense was punishable by more than

twelve months, as the state court had the discretion to sentence

Leach     to    a   maximum     sentence      of   eleven-to-fourteen     months

imprisonment without any further factual or legal findings.                     See

United States v. Simmons, __ F.3d __, 2011 WL 3607266, *5 (4th

Cir. Aug. 17,         2011) (holding that, for prior North Carolina

convictions where no aggravating or mitigating circumstances are

present, test is whether defendant could receive more than one

year in prison based upon his offense class and prior record

level).

               As such, the challenged conviction was a qualifying

conviction      for    career     offender     purposes,    and    the   district

court’s calculation of the Guidelines range was not procedurally

unreasonable.         Accordingly,      we   affirm   Leach’s     sentence.     We

grant the Government’s motion for judicial notice of Leach’s

                                         3
prior 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




                                      4
