                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4185


UNITED STATES OF AMERICA,

                      Plaintiff – Appellee,

          v.

KHALEEL ALI HILLIARD,

                      Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:06-cr-00156-NCT-1)


Submitted:   September 29, 2011           Decided:   October 4, 2011


Before KING, GREGORY, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


George E. Crump, III, Rockingham, North Carolina, for Appellant.
John Stuart Bruce, OFFICE OF THE UNITED STATES ATTORNEY, William
Miller Gilmore, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

              Khaleel Ali Hilliard was convicted following his guilty

plea to bank robbery, in violation of 18 U.S.C. § 2113(a) (2006).

The    district        court      sentenced        Hilliard     to      188        months     of

imprisonment.        Counsel      has    filed      a   brief     in        accordance      with

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

no meritorious issues for appeal, but raising the issue of whether

the district court improperly sentenced him as a career offender

when    one    of    the    predicate     convictions       was      not      punishable     by

imprisonment for a term exceeding one year under North Carolina

law.    In light of United States v. Simmons, 649 F.3d 237, 2011 WL

3607266 (4th Cir. Aug. 17, 2011) (en banc), we vacate the sentence

and remand, but affirm Hilliard’s conviction.

              This court reviews a sentence for reasonableness under an

abuse of discretion standard.              Gall v. United States, 552 U.S. 38,

51 (2007).          This review requires appellate consideration of both

the procedural and substantive reasonableness of a sentence.                                Id.

Procedural reasonableness is determined by reviewing whether the

district      court        properly     calculated      the     defendant’s          advisory

Guidelines range and then considered the 18 U.S.C. § 3553(a) (2006)

factors,      analyzed      any   arguments        presented    by     the     parties,      and

sufficiently        explained     the    selected       sentence.            Id.   at    49-51.

“Regardless of whether the district court imposes an above, below,

or    within-Guidelines        sentence,      it    must   place       on    the   record    an

‘individualized assessment’ based on the particular facts of the

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case before it.”               United States v. Carter, 564 F.3d 325, 330 (4th

Cir.        2009).            Finally,        this        court     reviews        the    substantive

reasonableness           of       the   sentence,            “examining     the    totality    of   the

circumstances            to    see      whether         the    sentencing         court   abused    its

discretion in concluding that the sentence it chose satisfied the

standards          set        forth      in        §      3553(a).”          United       States    v.

Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010), cert. denied,

131 S. Ct. 3078 (2011).

                  Hilliard challenges the district court’s designation of

him as a career offender on the ground that the court erred in

finding that a prior North Carolina conviction for possession with

intent to sell and deliver cocaine counted as a conviction with a

sentence         greater       than     one        year      for   career    offender      purposes.*

Hilliard received a six to eight month sentence for the offense.

Section          4B1.1    of      the    Sentencing            Guidelines     defines      a   career

offender as a defendant who (1) was at least eighteen years old

when he committed the instant offense, (2) is convicted of a felony

“that       is    either      a    crime      of       violence    or   a   controlled     substance

offense,” and (3) “has at least two prior felony convictions of

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

USSG § 4B1.1(a).               This court reviews de novo the district court’s

classification of Hilliard as a career offender and reviews for

        *
       Hilliard concedes that he has one qualifying felony of
felony assault on a police officer, but argues that none of his
remaining convictions qualify as a felony.



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clear error its factual findings.                 United States v. Farrior, 535

F.3d 210, 223 (4th Cir. 2008).

             When Hilliard raised this argument in the district court,

it was foreclosed by this court’s decision in United States v.

Harp, 406 F.3d 242 (4th Cir. 2005).                    Subsequently, however, this

court overruled Harp with the en banc decision in Simmons, in which

the court determined that the evaluation of whether a particular

offense was a felony must focus on the maximum sentence for which a

particular    defendant     was     eligible,         in   light     of    his     criminal

history, rather than the maximum sentence that could be imposed on

a defendant with the worst possible criminal record.                       Simmons, 2011

WL 3607266 at *6.

             In light of the decision in Simmons, we conclude that

Hilliard’s argument has merit.              We therefore vacate the district

court’s sentence and remand the case to the district court for

resentencing.      Further,       because       the    record   on    appeal      does   not

address Hilliard’s prior state record level or whether the state

sentencing    court    made    findings          of    aggravating        or     mitigating

circumstances,    we   do     not    express          an   opinion    on       whether   the

convictions qualify as career offender predicates and leave that

determination for the district court on remand.                      We deny Hilliard’s

counsel’s motion to withdraw as counsel.

             In accordance with Anders, we have reviewed the record in

this case and have found no other meritorious issues for appeal.

We   therefore   affirm     Hilliard’s          conviction,     however         vacate   the

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sentence, and remand for resentencing.          This court requires that

counsel inform Hilliard, in writing, of the right to petition the

Supreme Court of the United States for further review.              If Hilliard

requests that a petition be filed, but counsel believes that such a

petition would be frivolous, then counsel may move in this court

for leave to withdraw from representation.            Counsel’s motion must

state that a copy thereof was served on Hilliard.

            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.



                                                      AFFIRMED IN PART,
                                          VACATED IN PART, AND REMANDED




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