                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4538



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


TAWAYNE DEVONE LOVE, a/k/a Terry Wayne Love,
a/k/a T-Wayne,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-03-187)


Submitted:   February 8, 2006              Decided:   March 2, 2006


Before MOTZ, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David Schles, STOWERS & ASSOCIATES, Charleston, West Virginia, for
Appellant. Charles T. Miller, Acting United States Attorney, John
L. File, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Beckley, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

       Tawayne D. Love appeals his conviction and sentence following

a guilty plea to violations of 21 U.S.C. § 841(a)(1) (possession

with intent to distribute 50 or more grams of cocaine base) and 18

U.S.C. § 924(c)(1)(A)(I) (possession of a firearm in furtherance of

a drug trafficking crime).                On appeal, Love asserts that the

district court erred by denying his motions to withdraw his guilty

plea and to subpoena his former attorney.                   Love also contends that

the district court erred by using a state conviction to establish

career offender status for sentencing purposes and to impose

enhanced penalties under 21 U.S.C. § 841(b).                      Love further claims

that the 100:1 statutory sentencing ratio between cocaine base and

powder cocaine violates the Equal Protection Clause or, in the

alternative, creates a disparity that is not based on factors

adequately considered in the promulgation of the federal sentencing

guidelines.         For   the     reasons       that    follow,    we     affirm   Love’s

conviction and sentence.

       Love argues that the district court erred by denying his first

motion to withdraw his guilty plea.                    We review a district court’s

denial   of    a    motion   to    withdraw       a     guilty    plea    for   abuse   of

discretion.        United States v. Wright, 81 F.3d 1300, 1305 (4th Cir.

1996).      Federal Rule of Criminal Procedure 32 provides that, prior

to sentencing, a court may authorize the withdrawal of a guilty

plea   if    the    defendant     shows     a    “fair     and    just”    reason.      In


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determining whether the proffered reason is “fair and just,”

district courts must balance the six factors we articulated in

United States v. Moore:

   (1) whether the defendant has offered credible evidence that
   his plea was not knowing or not voluntary, (2) whether the
   defendant has credibly asserted his legal innocence, (3)
   whether there has been a delay between the entering of the
   plea and the filing of the motion, (4) whether defendant has
   had close assistance of competent counsel, (5) whether
   withdrawal will cause prejudice to the government, and (6)
   whether it will inconvenience the court and waste judicial
   resources.

931 F.2d 245, 248 (4th Cir. 1991).                   Here, the district court

carefully examined the Moore factors and found that they did not

weigh in favor of withdrawal.                 After carefully reviewing the

record,    we   find   that    the   district        court    did   not   abuse   its

discretion in denying this motion to withdraw the guilty plea.

     Love, while acting pro se, moved a second time to withdraw his

guilty plea. He also moved to subpoena his former attorney Herbert

Hively, who had served as counsel when Love pled guilty, to testify

regrading this motion.         Love later withdrew his motion to withdraw

his guilty plea and the district court dismissed both motions as

moot.    Love contends that the district court abused its discretion

in denying his motion to subpoena Hively.                    See United States v.

Owens,    528   F.2d   1176,    1180-81       (4th   Cir.    1975)(providing      the

standard of review).      Because Love withdrew his motion to withdraw




                                          3
his guilty plea, we affirm the district court’s dismissal of the

subpoena as moot.1

     Love    also   challenges    the       district   court’s   use   of   his

Pennsylvania state court conviction for possession of marijuana

with intent to deliver to enhance his sentence based on career

offender status.     In reviewing the district court’s application of

the guidelines, we review factual determinations for clear error

and legal determinations de novo.           United States v. Daughtrey, 874

F.2d 213, 217-18 (4th Cir. 1989). A defendant qualifies for career

offender status if he has “at least two prior felony convictions of

either a crime of violence or a controlled substance offense.”2

U.S.S.G. § 4B1.1(a)(3).          A “controlled substance offense” is

defined as

   an offense under federal or state law, punishable by a term
   of imprisonment of more than one year, that prohibits the
   manufacture, import, export, distribution, or dispensing of
   a controlled substance . . . or the possession of a
   controlled substance . . . with intent to manufacture,
   import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(b).      Love does not claim his state conviction

failed to meet this definition. Rather, Love argues that the state

statute that he was convicted under could encompass conduct that is

a misdemeanor under federal law and, therefore, should not qualify

     1
      We note that Hively had previously testified at length before
the district court on Love’s first motion to withdraw his guilty
plea.
     2
      Love’s additional felony conviction is a 1995 guilty plea to
second degree murder.

                                        4
as a felony conviction for career offender status.             Because Love’s

state    court   conviction     meets    the    definition    of     “controlled

substance offense” under the federal sentencing guidelines, we

conclude that it can be used for career offender status.

       Love also contests the district court’s imposition of enhanced

penalties    under   §   841(b)(1)(A).         Prior   to   Love’s    plea,   the

Government filed an information pursuant to 21 U.S.C. § 851,

stating its intention to use Love’s state drug conviction for

enhanced penalties.        Under § 841(b), a person who violates §§

841(a) and 841(b)(1)(A) is liable for enhanced penalties if the

violation occurs “after a prior conviction for a felony drug

offense has become final.”       § 841(b)(1)(A).       “Felony drug offense”

is defined as an “an offense that is punishable by imprisonment for

more than one year under any law of the United States or of a State

or foreign country that prohibits or restricts conduct relating to

. . . , marihuana, . . . .”          21 U.S.C. § 802(44).      Because Love’s

state conviction falls within this definition, we affirm the

application of the enhancement to Love’s sentence.

       Finally, Love challenges the constitutionality of the 100:1

statutory sentencing ratio between cocaine base and powder cocaine.

Love    acknowledges     that   we    have    previously    rejected    similar

arguments.    Brief of Appellant at 29; See United State v. Fisher,

58 F.3d 96, 99 (4th Cir.).       A panel of this Court may not overrule

the decision of an earlier panel.            Brubaker v. Richmond, 943 F.2d


                                        5
1363, 1381-82 (4th Cir. 1991). Therefore, we reject this challenge

by Love.

     Accordingly, we affirm Love’s conviction and sentence.     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.3

                                                          AFFIRMED




     3
      We deny Love’s motions to file a supplemental brief, to
exceed filing limits, to extend the filing deadline, and to amend
the briefing schedule. We further deny as moot a motion by Love’s
counsel seeking leave to withdraw from representation.

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