                Vacated by Supreme Court, June 21, 2010



                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4475


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

           v.

JASON EDWARD SIMMONS,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:07-cr-00077-LHT-1)


Argued:   May 14, 2009                      Decided:   August 4, 2009


Before AGEE, Circuit Judge, HAMILTON, Senior Circuit Judge, and
C. Arlen BEAM, Senior Circuit Judge of the United States Court
of Appeals for the Eighth Circuit, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Andrew Brady Banzhoff, Asheville, North Carolina, for
Appellant. Adam Christopher Morris, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.    ON BRIEF:
Gretchen C. F. Shappert, United States Attorney, Charlotte,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       On July 5, 2007, police officers searched the home of Jason

Simmons and seized approximately forty-four pounds of marijuana

and $256,566 in cash.         A grand jury in the Western District of

North Carolina subsequently indicted Simmons on three criminal

counts: (1) conspiracy to distribute at least 100 kilograms of

marijuana in violation of 21 U.S.C. § 841(a)(1) and § 846, (2)

possession of at least five kilograms of marijuana with intent

to distribute in violation of 21 U.S.C. § 841(a)(1)(b)(1)(D),

and (3) possession of at least twenty kilograms of marijuana

with       intent   to   distribute   in      violation    of    21    U.S.C.    §

841(a)(1)(b)(1)(A)(v).        Prior to trial the government filed an

information pursuant to 21 U.S.C. § 851, notifying Simmons that

it intended to rely on his January 29, 1996 North Carolina state

conviction      (“1996   conviction”)       for   possession    with   intent   to

sell or deliver marijuana in violation of North Carolina General

Statute 90-95(a) as the basis for seeking an enhanced sentence

under 21 U.S.C. § 841(b)(1)(D). 1                 Simmons pled guilty to all




       1
       21 U.S.C. § 841(b)(1)(D) provides that in a case involving
the possession with intent to distribute less than fifty
kilograms of marijuana, “any person [who] commits such a
violation after a prior conviction for a felony drug offense has
become final, such person shall be sentenced to a term of
imprisonment of not more than 10 years . . . .”



                                        2
three counts of the indictment without the benefit of a plea

agreement.

       Prior to sentencing, Simmons filed a written response to

the    government’s         §    851    information            asserting    that     the    1996

conviction did not qualify as a “felony drug offense” as defined

in 21 U.S.C. § 802(44) and, even if it did, that conviction had

been       obtained   in    violation         of       his    Sixth   Amendment      right    to

effective       counsel. 2             At     the        sentencing       hearing,    Simmons

reiterated      the    arguments            made    in    his    written    submission       but

conceded that a North Carolina state court had denied habeas

relief      related    to       the    1996    conviction.            The   district       court

rejected Simmons’ argument that the 1996 conviction was not a

“felony drug offense” for purposes of applying the mandatory

minimum sentences authorized in 21 U.S.C. § 841(b)(1)(D) and

found       Simmons’       Sixth       Amendment             collateral     attack     to     be

meritless.       The district court sentenced Simmons to 120 months

imprisonment on each count, to be served concurrently.


       2
           21 U.S.C. § 802(44) defines the term “felony drug offense”
as:

       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    narcotic   drugs,  marihuana,
       anabolic    steroids,    or    depressant   or  stimulant
       substances.

(Emphasis added.)



                                                   3
     Simmons now appeals the district court’s judgment and we

have jurisdiction pursuant to 18 U.S.C. § 3742.             For the reasons

that follow, we affirm.



                                    I.

     Simmons’ 1996 conviction resulted from his guilty plea to a

Class I felony under North Carolina law.             The state court gave

Simmons a suspended sentence of six to eight months for the 1996

conviction, which was within the presumptive range for Simmons’

offense   and     criminal   history     pursuant     to    the   statutory

sentencing     structure   set   forth   in   N.C.   Gen.    Stat.   §    15A-

1340.17(c).       However,   pursuant    to   N.C.   Gen.    Stat.   §    15A-

1340.17(d), the maximum sentence for a defendant with the worst

criminal history convicted of a Class I felony with aggravating

factors is fifteen months.

     Simmons maintains that he was not subject to the mandatory

minimum sentence for his current drug convictions because under

North Carolina’s sentencing structure he could not have received

a sentence in excess of twelve months for his 1996 conviction

because no aggravating factors were present in his case.                 Thus,

Simmons concludes, the 1996 conviction cannot be a “felony drug

offense” under 21 U.S.C. § 802(44) because he was not subject to

imprisonment for “more than one year” under the particular facts

of his case.

                                     4
       The Government responds that this case is controlled by our

decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005),

in which we examined the same North Carolina statutes at issue

here, § 15A-1340.17(c) and (d).                          In Harp, we held that “to

determine whether a conviction is for a crime punishable by a

prison term exceeding one year . . . we consider the maximum

aggravated sentence that could be imposed for that crime upon a

defendant with the worst possible criminal history.”                                      406 F.3d

at 246.

       Simmons    acknowledges          Harp       but    argues       that      it       does    not

control the outcome of his case.                   This is so, he argues, because

“we    know    conclusively        that     no      aggravating          circumstance             was

present” in his case and thus he could not have received a

sentence      greater      than    12     months.               Appellant’s        Br.      at    9.

However, the defendant in Harp also argued “that because the

specific      facts   of    his     case    did      not        provide    any        basis       for

imposition       of   a     sentence       exceeding             one     year,        his     prior

conviction     was    not    for    an     offense         punishable         by      a    term    of

imprisonment of more than one year” for purposes of applying the

relevant United States Sentencing Guideline, § 4B1.2(b).                                          406

F.3d    at    246.        “He     explain[ed]            that     although         the      maximum

aggravated       punishment        for     possession             with    the         intent       to

distribute marijuana, a Class I felony, [was] 15 months, the



                                               5
maximum non-aggravated punishment [was] only 12 months.”      Id.

We explicitly rejected that argument:

     [T]his court has already rejected such an individual
     analysis in United States v. Jones, 195 F.3d 205 (4th
     Cir.   1999),   in    construing  statutory   language
     essentially identical to the language of § 4B1.2(b).
     In Jones, we held, in the context of a felon-in-
     possession-of-firearm conviction, see 18 U.S.C.A. §
     922(g)(1) (West 2000), that a prior North Carolina
     conviction was for “a crime punishable by imprisonment
     for a term exceeding one year,” id., if any defendant
     charged with that crime could receive a sentence of
     more than one year.    See Jones, 195 F.3d at 206-07.
     In so doing, we reasoned:

          [I]n   §   922(g)(1),    “punishable”    is   an
          adjective used to describe “crime.”           As
          such, it is more closely linked to the
          conduct, the crime, than it is to the
          individual    convicted    of    the   conduct.
          Congress could have written § 922(g)(1)
          differently had it intended to focus on the
          individual in particular rather than the
          crime    for   which    the    individual    was
          convicted.       Instead    of    the    phrase,
          “individual convicted . . . of a crime
          punishable   by   imprisonment    for   a   term
          exceeding one year,” Congress could have
          used the phrase, “individual punished by
          imprisonment for a term exceeding one year”
          or    even     “individual     sentenced     for
          imprisonment for a term exceeding one year.”

     Id.   at  207   (internal  quotation   marks  omitted)
     (alterations in original). Thus, to determine whether
     a conviction is for a crime punishable by a prison
     term exceeding one year, Jones dictates that we
     consider the maximum aggravated sentence that could be
     imposed for that crime upon a defendant with the worst
     possible criminal history. See id. at 206-08.

Harp, 406 F.3d at 246.




                                 6
       Our precedent in Harp thus directly controls the result in

this case where the same North Carolina statutes are at issue.

It    is   well   established        that    “a       panel      of   this    court      cannot

overrule, explicitly or implicitly, the precedent set by a prior

panel of this court.                 Only the Supreme Court or this court

sitting en banc can do that.”                         Scotts Co. v. United Indus.

Corp.,     315    F.3d   264,    271-72      n.2       (4th      Cir.      2002)    (citation

omitted).

       Simmons contended at oral argument that the United States

Supreme Court’s decision in United States v. Rodriguez, 128 S.

Ct.   1783   (2008),     which       was    decided         after     he    was    sentenced,

implicitly overrules the reasoning in Harp and thus it is no

longer     controlling.         We   disagree.              If   anything,        the   Supreme

Court’s     analysis     in    Rodriguez         is    in    harmony       with    the   ratio

decidendi of our prior holdings in Harp and Jones, which require

us to “consider the maximum aggravated sentence that could be

imposed for that crime upon a defendant with the worst possible

criminal history.”            Harp, 406 F.3d at 246; Jones, 195 F.3d at

207 (reconciling the language of section 922(g)(1) “with North

Carolina's sentencing scheme by viewing the offense statutory

maximum as the statutory maximum for the crime, regardless of

the prior criminal record status of the defendant”); see also

United States v. Hill, 539 F.3d 1213, 1221 (10th Cir. 2008)

(holding that “Section 922(g)(1), like the statute at issue in

                                             7
Rodriquez, demands that courts focus on the maximum statutory

penalty for the offense, not the individual defendant”). But see

United    States     v.     Pruitt,    545   F.3d      416,    422    (6th    Cir.    2008)

(finding that “[t]he district court erred in failing to account

for [the defendant’s] prior record level at the time of his

predicate convictions in determining whether those convictions”

were “punishable by death or imprisonment for a term exceeding

one    year”   for    purposes     of     applying      United       States   Sentencing

Guideline § 4B1.1.).

        The relevant federal statutory provision in the case at

bar, 21 U.S.C. § 802(44), does not define a felony drug offense

in    terms    of    an    individual     defendant’s         particular      sentencing

factors, but as “an offense that is punishable by imprisonment.”

This     statutory        definition    is     indistinguishable         from    the     18

U.S.C. § 922(g)(1) provision at issue in Jones and Hill for “a

crime     punishable        by    imprisonment,”         and     identical       to     the

Guidelines provision in Harp — “an offense . . . punishable by

imprisonment.”            Thus,   based   on     our   clear     precedent      in    Harp,

Simmons’ contention that he was not convicted of an “offense

that is punishable by imprisonment for more than one year” under

the applicable North Carolina statute is without merit.




                                             8
                                             II.

     Simmons            also    argues    that       the    district   court      erred     in

failing       to   provide       a   hearing     (in       violation   of    21    U.S.C.    §

851(c)(1))         so    he    could     establish         that   counsel    in    his    1996

conviction provided ineffective assistance. 3                          However, as the

Government points out, any failure to provide such a hearing

would     constitute           harmless    error       because      Simmons’      collateral

attack on the prior conviction was plainly barred by the five-

year statute of limitations in 21 U.S.C. § 851(e). 4

        The   Government’s           information       in    this   case    was    filed    on

August 17, 2007.               Simmons’ prior conviction occurred on January

29, 1996, well beyond the five-year time frame for a collateral

challenge to the validity of that conviction.                               Simmons argues

that he is not subject to the five-year limitation because he

was unaware of the substantial constitutional defects in his

prior conviction until consulting with counsel in the present

     3
       Simmons alleges that his counsel’s representation at that
time was constitutionally deficient because he erroneously
informed Simmons that pleading guilty was the only way to avoid
jail time when, in fact, he was only subject to probation.
     4
         The statute provides that

     No person who stands convicted of an offense under
     this part may challenge the validity of any prior
     conviction alleged under this section which occurred
     more   than  five   years  before   the  date of the
     information alleging such prior conviction.

21 U.S.C. § 851(e).



                                                 9
case.   Simmons fails, however, to produce authority supporting

any such notice requirement in circumstances such as these, and

we find none.    Therefore, even if we assume Simmons properly

requested a hearing to challenge the prior conviction (an issue

we need not decide), any error in not conducting such a hearing

was harmless as a matter of law.



                              III.

     For the reasons set forth above we affirm the judgment of

the district court.

                                                       AFFIRMED




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