                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5328


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JASON ROBERT MCGAHA,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever, III,
Chief District Judge. (7:09-cr-00131-D-2)


Submitted:   September 28, 2011           Decided:   October 14, 2011


Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Richard Croutharmel, Raleigh, North Carolina, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Pursuant to a plea agreement, Jason Robert McGaha pled

guilty to possession of a firearm by a convicted felon, and

aiding and abetting, in violation of 18 U.S.C. §§ 922(g)(1),

924(e), 2 (2006).   The district court designated McGaha an armed

career criminal, based on several North Carolina state felony

breaking and entering convictions, as well as a North Carolina

state felony conviction for eluding arrest with a motor vehicle

with two aggravating factors, and sentenced him to 192 months’

imprisonment.   McGaha timely appealed.

          McGaha’s counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), finding no meritorious grounds

for appeal, but arguing that McGaha’s prior state convictions

were not punishable by more than a year in prison and therefore

he was improperly designated an armed career criminal. 1     McGaha

subsequently    filed   an   unopposed    motion   to   remand   for

resentencing in light of United States v. Simmons, ___ F.3d ___,

2011 WL 3607266 (4th Cir. Aug. 17, 2011) (No. 08-4475).     For the

reasons that follow, we vacate the criminal judgment, grant the

motion to remand, and remand the case to the district court for




     1
       Although advised of his right to do so, McGaha did not
file a pro se supplemental brief.



                                 2
reconsideration of McGaha’s conviction and sentence in light of

Simmons.

            To     qualify       for    the    fifteen       year     mandatory      minimum

punishment      under     the    Armed       Career    Criminal       Act    (“ACCA”),      18

U.S.C. § 924(e), a felon in possession of a firearm must have

three prior convictions for a violent felony or serious drug

offense    or     both,    committed         on     occasions     different     from     one

another.        A qualifying offense must be punishable by a term

exceeding    one    year.        18     U.S.C.      § 924(e)(2)(B).           Under    North

Carolina’s        structured           sentencing          scheme,      sentences        are

calculated based on an offender’s criminal history and whether

his   offense       falls       within        the     mitigated,       presumptive,         or

aggravated range.           N.C. Gen. Stat. § 15A-1340.17(c)-(d) (Lexis

Nexis 2009).

            At     the    time    of    McGaha’s       conviction       and   sentencing,

existing precedent established that a prior conviction for a

violent    felony    or     serious      drug       offense     was    punishable      by    a

prison     term    exceeding       one       year     if    the     maximum    aggravated

sentence that could be imposed for that crime upon a defendant

with the worst possible criminal history was more than a year.

United    States    v.    Harp,        406    F.3d    242,    246     (4th    Cir.    2005).

Recently, however, we overruled Harp with our en banc decision

in United States v. Simmons, 2011 WL 3607266 (4th Cir. Aug. 17,

2011) (No. 08-4475), where we held that a North Carolina offense

                                               3
may    not     be    classified         as   a     felony       based    upon     the    maximum

aggravated sentence that could be imposed upon a repeat offender

if     the    individual         defendant         was       not    eligible      for    such    a

sentence.       Simmons, 2011 WL 3607266, at *3.

               McGaha      did    not    receive         a    sentence     exceeding       twelve

months for any of his offenses and it is unclear from the record

on    appeal    whether      any    of       his       convictions       exposed     him    to   a

sentence exceeding twelve months. 2                       Thus, it is unclear from the

record whether McGaha was properly designated an armed career

criminal or even whether he is guilty of the offense to which he

pled       guilty.      Accordingly,          we       vacate      the   criminal       judgment,

grant McGaha’s unopposed motion to remand for resentencing, and

remand to the district court for reconsideration of McGaha’s

conviction and sentence in light of Simmons. 3

               This    court      requires         that      counsel     inform     McGaha,      in

writing,      of     the   right    to       petition        the    Supreme     Court     of    the

United States for further review.                            If McGaha requests that a

petition be filed, but counsel believes that such a petition



       2
       To the extent that McGaha was convicted of aiding and
abetting a § 922(g) offense, it is unclear from the record on
appeal whether McGaha’s co-defendant qualified as a felon for
purposes of § 922(g).
       3
       In accordance with Anders, we have reviewed the entire
record in this case and have found no other meritorious issues
for appeal.



                                                   4
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 McGaha.                 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.



                                                   VACATED AND REMANDED




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