Vacated by Supreme Court, January 22, 2008



                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4139



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


WESLEY DEVON FOOTE,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00177-NCT)


Submitted:   September 12, 2007           Decided:   October 5, 2007


Before MICHAEL, TRAXLER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, William C. Ingram, First
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, David P.
Folmar, Jr., Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Wesley    Devon   Foote     pled   guilty    to     three    counts   of

distribution of cocaine base (crack) after a prior conviction for

a drug offense, 21 U.S.C.A. § 841(a), (b)(1)(B) (West 1999 & Supp.

2007).      He was sentenced as a career offender to a term of 262

months imprisonment.          U.S. Sentencing Guidelines Manual § 4B1.1

(2005).      In this appeal, Foote contends that he was improperly

sentenced as a career offender, that this court’s standard of

review for criminal sentences is an unconstitutional return to

mandatory     guideline    sentencing,       and   that    the    district    court

erroneously believed that it lacked authority to impose a sentence

below the guideline range based in part on the disparity in

sentences for crack and cocaine offenses.                We affirm.

             Foote    first    asserts      that   his    1995    North     Carolina

conviction for possession of cocaine with intent to distribute was

not a felony conviction, as the term is used in § 4B1.1, because

the maximum sentence he could have received under North Carolina’s

structured sentencing scheme was 10-12 months.                   The offense is a

Class H felony, see N.C. Gen. Stat. § 90-95(a)(1), (b)(1) (2005),

and   the    maximum    sentence       is   twenty-five     to     thirty     months

imprisonment.        N.C. Gen. Stat. § 15A-1340.17(c), (d) (2005).                 A

“prior felony conviction” is defined in Application Note 1 to USSG

§ 4B1.2 as a state or federal offense “punishable by death or

imprisonment exceeding one year.”


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              In United States v. Jones, 

, 206-07 (4th Cir.

1999), this court held that “a prior North Carolina conviction was

for a crime punishable by imprisonment for a term exceeding one

year if any defendant charged with that crime could receive a

sentence of more than one year.”                (internal quotation marks and

citation omitted).        After the Supreme Court’s decision in Blakely

v. Washington, 

 (2004), this court reaffirmed its

holding.      United States v. Harp, 

, 246-47 (4th Cir.),

cert. denied, 

 (2005).

     Foote acknowledges Harp, but argues that Harp cannot stand in

light of Blakely, United States v. Booker, 

 (2005), and

Cunningham v. California, 

 (2007).                     As noted, Harp

specifically held that Blakely did not affect this court’s prior

holding in Jones.        Moreover, Harp was argued and decided after the

opinion in Booker issued. Finally, Cunningham does not provide any

basis   for    revisiting       the    issue.     It    held   that    California’s

determinate      sentencing      law    violated       the   Sixth    Amendment   by

“assign[ing] to the trial judge, not to the jury, authority to find

the facts that expose a defendant to an elevated ‘upper term’

sentence.”      127 S. Ct. at 860.          However, we noted in Harp that

“North Carolina courts have already concluded that the state

sentencing      regime    can    accommodate      the    process      that   Blakely

demands.” Harp, 406 F.3d at 247 (citing State v. Harris, 

, 702 (N.C. Ct. App. 2004), holding aff’d, 

, 620


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(N.C. 2005)).     In any case, “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., 

,

271-72 n.2 (4th Cir. 2002) (internal quotation marks and citation

omitted).

            Foote’s challenge to this court’s decisions which accord

a presumption of reasonableness to a sentence within a properly

calculated advisory guideline range is foreclosed by Rita v. United

States, 

 (2007).

            Last, Foote asserts that the district court erred in

refusing to sentence him below the guideline range because of the

disparity between cocaine and crack sentences. This court has held

that,    after   Booker,   a   sentencing   court   cannot   vary   from   the

advisory    sentencing     guideline   range   by   substituting    its    own

crack-to-powder cocaine ratio for the 100:1 ratio established by

Congress.     United States v. Eura, 

, 633-34 (4th Cir.

2006), petition for cert. filed, __ U.S.L.W. __ (U.S. June 20,

2006) (No. 05-11659).          Although Foote suggests that we should

reconsider the holding in Eura, we will not do so for the reasons

previously explained.       See Scotts Co., 315 F.3d at 271-72 n.2.

            We therefore affirm the sentence imposed by the district

court.    We dispense with oral argument because the facts and legal




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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.


                                                           AFFIRMED




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