                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4875


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ELIAS KANEAL AZON, a/k/a Elias Kaneal Azan,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:08-cr-00060-F-1)


Submitted:   September 30, 2011           Decided:   October 18, 2011


Before KING, SHEDD, and AGEE, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. George E. B.
Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-
Parker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Elias        Kaneal    Azon   pled    guilty      to   possession       with

intent to distribute more than five grams of cocaine base, in

violation of 21 U.S.C. § 841(a)(1) (2006).                      He was sentenced as

a career offender to 210 months’ imprisonment.                       On appeal, Azon

contends      that      he    was    improperly     characterized        as     a    career

offender because he does 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)

§ 4B1.1(a) (2008).             Azon concedes that his 2008 1 North Carolina

conviction        for      possession     with   intent    to    sell     and       deliver

cocaine      is   a     qualifying      predicate    conviction.          However,       he

asserts that his North Carolina controlled substance convictions

in 2004 and 2005 were not punishable by terms of imprisonment

exceeding one year.             See id. cmt. n.1 (applying definitions in

USSG       § 4B1.2);         § 4B1.2(b)     (defining     “controlled           substance

offense”).        He reasons that, under the North Carolina Structured

Sentencing Act, his maximum sentence was twelve months, even

applying      the     aggravated      range.       See   N.C.    Gen.    Stat.       § 15A-




       1
       Azon was arrested for this offense in 2006 and convicted
in 2008.



                                             2
1340.17(c)-(d) (2007) (applicable to offenses committed on or

after Dec. 1, 1995, and on or before Nov. 30, 2009). 2

           When Azon 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

sustain Azon’s objection.

           Accordingly, while we affirm Azon’s conviction, which

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

to the district court for resentencing. 3     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




     2
         Subsequent amendments to the statute do not affect this
case.
     3
        Because we have concluded that Azon is entitled to
resentencing, we find it unnecessary to address his remaining
argument, which challenges the procedural reasonableness of his
sentence.



                                  3
