                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4175


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ANDRE DEMONTIO MCNEIL,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:09-cr-00037-F-1)


Submitted:   September 27, 2011           Decided:   October 6, 2011


Before MOTZ, KING, and GREGORY, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Mary J. Darrow, LAW OFFICE OF MARY JUDE DARROW, Raleigh, North
Carolina, for Appellant. George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Andre Demontio McNeil pleaded guilty to possession of

cocaine base, in violation of 21 U.S.C. § 841(a) (2006).                       The

district court sentenced McNeil to 120 months of imprisonment,

based on the statutory mandatory minimum sentence applicable to

a defendant who has sustained a prior felony drug offense.                      See

21 U.S.C. § 841(b)(1)(B) (2006), current version at 21 U.S.C.A.

§ 841(b)(1)(B) (West Supp. 2011).              McNeil timely appealed, and

argues that his prior North Carolina conviction did not qualify

as   a    predicate     felony    offense     to    increase    the       statutory

penalties.     For    the    reasons   that    follow,    we   affirm      McNeil’s

conviction, but vacate the sentence and remand for resentencing.

            We review a sentence for reasonableness, applying an

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

38, 51 (2007); see also United States v. Layton, 564 F.3d 330,

335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009).                         In so

doing, we first examine the sentence for “significant procedural

error,”     including       “failing    to     calculate       (or    improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory,    failing       to   consider     the   [18   U.S.C.]     §    3553(a)

[(2006)]     factors,     selecting    a      sentence    based      on    clearly

erroneous facts, or failing to adequately explain the chosen

sentence.”    Gall, 552 U.S. at 51.



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            Under 21 U.S.C. § 841(b)(1)(B) (2006), a defendant is

subject to a statutory mandatory minimum term of imprisonment of

five years unless he has sustained a prior conviction for a

felony    drug     offense,       in   which      case     the      statutory        mandatory

minimum    becomes       ten   years     of       imprisonment.            A    felony      drug

offense is defined as an “offense punishable by imprisonment for

more than one year under any law . . . of a State.”                                  21 U.S.C.

§ 802(44) (2006).

            Here, McNeil’s prior conviction was for possession of

marijuana, a Class I felony under North Carolina law.                                Moreover,

at the time of his conviction, McNeil’s prior record level was

I, and the sentencing court found that he should be sentenced

within the presumptive range of the applicable sentencing table

under    N.C.    Gen.     Stat.    § 15A-1340.17(c)             (2007).         Under    North

Carolina law, McNeil faced a maximum term of imprisonment of

eight    months.         See   N.C.    Gen.    Stat.       §   15A-1340.17(d)          (2007).

Therefore, McNeil could not have received a term of imprisonment

exceeding twelve months for this prior conviction.

            In United States v. Simmons, 2011 WL 3607266 (Aug. 17,

2011) (en banc), we determined that an offense is not punishable

by a term exceeding one year of imprisonment if the defendant

could     not    have     actually      received         more       than       one   year     of

imprisonment       for    that    offense,         based       on   his    prior      criminal

history and other factors.              As McNeil could not have received a

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term exceeding one year of imprisonment for his prior offense,

he did not have a qualifying predicate offense to increase the

statutory penalties under § 841(b)(1)(B).          Because the advisory

Guidelines range was determined based on the statutory mandatory

minimum of 120 months, see U.S. Sentencing Guidelines Manual

§ 5G1.1    (2010),   McNeil   was   sentenced   based   on   an   incorrect

Guidelines calculation and an inapplicable statutory mandatory

minimum.    Thus the sentence is procedurally unreasonable.

            Accordingly, we affirm McNeil’s conviction, but vacate

the sentence and remand 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 the decisional process.

                                                        AFFIRMED IN PART,
                                                         VACATED IN PART,
                                                             AND REMANDED




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