United States of America v. Xavier Antwone Blackwood

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4762
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
XAVIER ANTWONE BLACKWOOD,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00258-WO-1)
Submitted: February 25, 2010 Decided: March 2, 2010
Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Terry Michael Meinecke, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
Vacated by Supreme Court, October 4, 2010

-- 1 of 4 --

2
PER CURIAM:
Xavier Antwone Blackwood pled guilty pursuant to a
written plea agreement to maintaining drug-involved premises, 21
U.S.C. § 856(a)(1), (b) (2006), and possession of a firearm
after having previously been convicted of a crime punishable by
imprisonment for a term exceeding one year, 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2006). The Government filed an
Information of Prior Conviction pursuant to 21 U.S.C. § 851
(2006), stating that Blackwood committed the subject offenses
after a prior state felony drug conviction for possession with
intent to sell and deliver cocaine (two counts) became final.
Blackwood was sentenced to 85 months’ imprisonment. On appeal,
counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating in his view there are no meritorious
issues for appeal, but questioning whether the district court
erred in finding Blackwood’s prior drug conviction for which
Blackwood received a sentence of six to eight months “a crime
punishable by imprisonment for a term exceeding one year” under
18 U.S.C. § 922(g). Blackwood was notified of his right to file
a pro se supplemental brief but has not done so. Finding no
error, we affirm.
Blackwood argues that his prior state conviction
cannot serve as a predicate offense under 18 U.S.C. § 922(g)
because, under the North Carolina Fair Sentencing Act, he was

-- 2 of 4 --

3
subject to less than one year of imprisonment for the prior
conviction. However, as counsel concedes, this argument is
foreclosed by our decision in United States v. Harp, 406 F.3d
242, 246-47 (4th Cir. 2005) (determining satisfaction of
recidivist guideline requirement that prior conviction was
punishable by term exceeding one year depends on “the maximum
aggravated sentence that could be imposed for that crime upon a
defendant with the worst possible criminal history”); see also
United States v. Rodriguez, 128 S. Ct. 1783, 1787-93 (2008)
(defining phrase “maximum term of imprisonment” in 18 U.S.C.
§ 924(e) (2006) as maximum term permitted by state statute,
including recidivist provisions). Because the prior conviction
at issue was clearly punishable by a maximum term of
imprisonment exceeding one year, we conclude the district court
did not err in considering it a predicate conviction for
purposes of 18 U.S.C. § 922(g).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave

-- 3 of 4 --

4
to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on the client. 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 in the decisional process.
AFFIRMED

-- 4 of 4 --