              Certiorari granted by Supreme Court, June 30, 2015
             Vacated and Remanded by Supreme Court, June 30, 2015



                                UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                No. 14-4649


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

ANTONIO TASTE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   William L. Osteen,
Jr., Chief District Judge. (1:07-cr-00280-WO-1)


Submitted:    January 29, 2015                    Decided:    March 4, 2015


Before NIEMEYER, FLOYD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Steven A. Feldman, FELDMAN and FELDMAN, Uniondale, New York, for
Appellant.    Ripley Rand, United States Attorney, Michael F.
Joseph, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Antonio Taste pled guilty to possession of a firearm

by   a   convicted    felon,       18     U.S.C.       § 922(g)(1)         (2012),     and    was

sentenced    to    180     months’      imprisonment,              the    mandatory    minimum

penalty under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e) (2012).          On appeal, counsel submitted a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), stating that there

were no meritorious issues for appeal, but suggesting that this

court consider whether the district court erred in designating

Taste an armed career criminal.                      Applying United States v. Harp,

406 F.3d 242, 246 (4th Cir. 2005), this court rejected counsel’s

argument and affirmed the judgment.                         United States v. Taste, 303

F. App’x 149 (4th Cir. 2008) (No. 08-4388).

            In July 2012, Taste filed a 28 U.S.C. § 2255 (2012)

motion,    arguing        that    his     four        North     Carolina       breaking       and

entering    convictions           could     no       longer     be       considered    violent

felonies for purposes of the ACCA in light of our decision in

United    States     v.    Simmons,       649        F.3d    237    (4th     Cir.   2011)     (en

banc).      The    Government        responded          that,        while    Taste    may     be

entitled to resentencing, he had numerous other violent felonies

and/or    serious    drug        offenses    that       would       still     render    him    an

armed career criminal subject to a mandatory minimum 180-month

sentence.     Although the Government posited that the enhanced

ACCA sentence was still appropriate, relying in part on Taste’s

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three Massachusetts “larceny from the person” convictions, it

agreed to resentencing in light of Simmons. 1                       Accordingly, the

district court, accepting the magistrate judge’s recommendation,

granted the § 2255 motion as to Taste’s Simmons claim, vacated

the judgment, and ordered resentencing.

            At    resentencing       in     July    2014,     the    district     court

concluded      that     Taste’s     prior       Massachusetts       convictions     for

larceny from the person were violent felonies for purposes of

the ACCA, and again applied the enhanced sentence of 180 months’

imprisonment.         The district court imposed the same conditions of

supervised release as it did at the first sentencing, including

the following special condition:

     The defendant shall submit to substance abuse testing,
     at any time, as directed by the probation officer.
     The defendant shall cooperatively participate in a
     substance abuse treatment program, which may include
     drug    testing   and    inpatient   or    residential
     treatment. . . .

            On    appeal,      Taste   first       alleges     that    the   district

court’s special condition that he “submit to substance abuse

testing   at     any    time   as   directed       by   the    probation     officer”

constitutes an improper delegation of judicial function to the

probation officer.         Specifically, he maintains that the district


     1
        As part of this concession, the Government further
affirmatively waived any statute of limitations defense that
might otherwise apply.



                                            3
court erred in authorizing the probation department to conduct

substance    abuse     testing    at    any    time     during   his    term   of

supervision, without issuing a schedule or setting a limitation

on the number of tests per year.             Taste concedes that this claim

is reviewed for plain error because he did not object below. 2

            To establish plain error, Taste must demonstrate that

the district court erred, the error was plain, and the error

affected his substantial rights.               Henderson v. United States,

133 S. Ct. 1121, 1126 (2013).               If these requirements are met,

the court will exercise its discretion to correct the error only

if   it   “seriously    affects   the       fairness,   integrity      or   public

reputation of judicial proceedings.”              Id. at 1126-27 (internal

quotation marks and alterations omitted).

            We conclude that the district court did not err in

imposing the special condition.             See United States v. Carpenter,

702 F.3d 882, 884-885 (6th Cir. 2012) (holding that when “the

      2
         The Government argues that Taste’s challenge to the
special condition, which was also imposed in the original
judgment, is barred because he could have raised it in his
initial appeal but failed to do so. Under the circumstances of
this case, where a resentencing hearing was held, we conclude
otherwise.   See 28 U.S.C. § 2255(b) (2012) (“[T]he court shall
vacate and set the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or correct the
sentence as may appear appropriate.”); see also United States v.
Haynes, 764 F.3d 1304, 1310 (11th Cir. 2014) (“[A] resentencing
court  has   the   discretion  to   limit resentencing   to  the
‘appropriate’ relief granted in the order to vacate, set aside,
or correct the prisoner’s sentence.”).



                                        4
district court imposed drug testing in connection with a special

condition of substance abuse program participation . . . [it]

was . . . not required to specify the number of drug tests [a

defendant] must undergo as a part of the treatment program.”).

Even   assuming           error,    any   improper       delegation       did    not    affect

Taste’s substantial rights.                 See United States v. Maciel-Vaquez,

458    F.3d        994,    996     (9th     Cir.     2006)   (holding       any     improper

delegation did not rise to level of plain error); United States

v.    Padilla,       415     F.3d    211,    219-20      (1st     Cir.     2005)    (holding

district court’s erroneous delegation of authority to probation

officer       to     determine       maximum        number   of     drug    tests       to    be

administered         was     not    structural       error   and    therefore          did   not

constitute plain error).

              Next,        Taste     argues        the   district        court     erred     in

designating him an armed career criminal based in part on his

Massachusetts         convictions         for      larceny   from    the     person.         We

review de novo a district court’s determination of whether prior

offenses qualify as violent felonies for purposes of the ACCA.

United States v. Hemingway, 734 F.3d 323, 331 (4th Cir. 2013).

In considering whether the district court properly designated

Taste an armed career criminal, we review the sentencing court’s

legal conclusions de novo and its factual findings for clear

error.    United States v. McDowell, 745 F.3d 115, 120 (4th Cir.



                                                5
2014), cert. denied, ___ S. Ct. ___, 2015 WL 132957 (Jan. 12,

2015).

              A     defendant          is    an    armed      career      criminal    when    he

violates 18 U.S.C. § 922(g)(1) and has three prior convictions

for    violent       felonies       or       serious      drug     offenses.         18    U.S.C.

§ 924(e)(1).            Because        a    Massachusetts        conviction     for       larceny

from the person constitutes a violent felony for purposes of the

ACCA, we reject this argument.                         See United States v. Rodriguez,

659    F.3d   117,        118-20       (1st    Cir.      2011)     (holding    Massachusetts

conviction        for     larceny          from    the    person      constitutes         violent

felony under the residual clause of the ACCA); United States v.

DeJesus,      984    F.2d    21,       25     (1st     Cir.   1993)       (larceny    from    the

person as defined under Massachusetts law constitutes a crime of

violence); see also United States v. Jarmon, 596 F.3d 228, 230–

33 (4th Cir. 2010) (holding that North Carolina crime of larceny

from   the    person       was     a       crime   of    violence      under   the    residual

clause of the career offender guideline).

              Accordingly, we affirm the district court’s judgment.

We    dispense      with     oral       argument        because     the    facts     and   legal

contentions         are    adequately         presented       in    the    materials       before

this court and argument would not aid the decisional process.



                                                                                      AFFIRMED



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