                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-4965


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES LOUIS THOMAS,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.       Thomas David
Schroeder, District Judge. (1:09-cr-00360-TDS-1)


Submitted:   August 30, 2011                 Decided:   September 2, 2011


Before KING, GREGORY, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.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.   Ripley Rand, United States Attorney,
Graham T. Green, Assistant United States Attorney, Winston-
Salem, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             James     Louis     Thomas       was   convicted        following        his

conditional      guilty     plea    to    possession       of   a    firearm     by     a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006).

The   district    court     sentenced     Thomas     to    sixty-nine       months     of

imprisonment.        Thomas reserved his right to appeal the district

court’s denial of his motion to dismiss the § 922(g)(1) charge.

             On appeal, Thomas argues that his prior North Carolina

state   conviction     for     possession      of   marijuana       with    intent    to

distribute     was    not      punishable      by   more    than      one    year     of

imprisonment and thus is not a predicate conviction pursuant to

18 U.S.C. § 922(g)(1).             In light of United States v. Simmons,

      F.3d    , 2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en banc),

we vacate and remand.

             Under 18 U.S.C. § 922(g)(1), it is unlawful for any

person convicted of a crime punishable by imprisonment for a

term exceeding one year to possess a firearm.                       As to the prior

drug offense specified in the § 922(g)(1) charge, Thomas was

punishable by no more than eight months’ imprisonment.                       See N.C.

Gen. Stat. § 15A-1340.17(c)-(d) (setting out minimum and maximum

sentences     applicable         under      North     Carolina’s           “structured

sentencing” regime).           When Thomas 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,

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however, we overruled Harp with the en banc decision in Simmons,

in   which     we    sustained    a   similar   argument     in   favor    of   the

defendant.          In view of our holding in Simmons, we vacate the

district court’s judgment and remand the case to the district

court for proceedings consistent with this opinion.

             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.



                                                           VACATED AND REMANDED




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