                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4028


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

PHILLIP RYAN GARRISON,

                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-00072-WO-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Affirmed in part, vacated in part, and remanded by unpublished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.


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, Anand P. Ramaswamy, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Phillip    Ryan       Garrison      pled    guilty,     pursuant     to    a

written plea agreement, to possession of a firearm by a felon,

in violation of 18 U.S.C. § 922(g)(1) (2006).                           He was sentenced

to 100 months’ imprisonment.                  On appeal, Garrison contends that

his base offense level was incorrectly calculated because he did

not    have      two    prior    felony      convictions       of    either   a   crime    of

violence or a controlled substance offense, as required by U.S.

Sentencing         Guidelines          Manual       (USSG)     § 2K2.1(a)(2)        (2008).

Garrison concedes that his 2004 North Carolina conviction for

common       law       robbery    is     a   qualifying        predicate      conviction.

However, he asserts that his 2005 North Carolina convictions for

two counts of attempted common law robbery were not punishable

by a term of imprisonment exceeding one year.                           See USSG § 2K2.1

cmt.       n.1   (defining       “felony     conviction”);          § 4B1.2(a)    (defining

“crime of violence”).              He reasons that, under the North Carolina

Structured         Sentencing       Act,     his     maximum    sentence      was   twelve

months because no aggravating factors were either admitted or

proven by the State.               See N.C. Gen. Stat. § 15A-1340.17(c)-(d)

(2007) (applicable to offenses committed on or after Dec. 1,

1995, and on or before Nov. 30, 2009). ∗


       ∗
       The North Carolina legislature subsequently amended the
statute with regard to offenses committed on or after December
1, 2009, see Act of Aug. 28, 2009, 2009 N.C. Sess. Laws 555,
(Continued)
                                                2
           When   Garrison     raised       this   argument    in   the   district

court, it was foreclosed by our decision in United States v.

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

overruled Harp with our en banc decision in United States v.

Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).                      In view of

Simmons, we will likewise sustain Garrison’s objection.

           Accordingly,      while    we     affirm   Garrison’s      conviction,

which is not challenged on appeal, we vacate his sentence and

remand to the district court for resentencing.                 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 IN PART;
                                                               VACATED IN PART;
                                                                   AND REMANDED




§§ 1-2, and offenses committed on or after December 1, 2011.
See Justice Reinvestment Act of 2011, 2011 N.C. Sess. Laws 192,
§ 2(e)-(f).



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