                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-5059


UNITED STATES OF AMERICA,

                Plaintiff - Appellant,

          v.

MICHAEL JEROME THOMPSON,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:07-cr-00035-BO-1)


Submitted:   April 24, 2012                 Decided:    May 8, 2012


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Thomas G. Walker,      United States Attorney, Jennifer P. May-
Parker, Yvonne V.      Watford-McKinney, Assistant United States
Attorneys, Raleigh,     North Carolina, for Appellant.  James B.
Craven, III, Durham,   North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            This is an appeal by the United States that challenges

a sentence imposed by the district court.                          Concluding that the

court misapplied United States v. Simmons, 649 F.3d 237 (4th

Cir. 2011) (en banc), we vacate and remand for resentencing.

            Michael Jerome Thompson pled guilty to possession of a

firearm by a felon, in violation of 18 U.S.C. § 922(g) (2006).

The district court held that Thompson’s six prior North Carolina

breaking and entering convictions were not violent felonies for

purposes of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §

924(e) (2006), which mandated a minimum sentence of 180 months’

imprisonment,        sentencing            Thompson        to      ninety-two      months’

imprisonment.       The Government appealed, and this court held that

a   conviction      for   breaking         and       entering    under   North    Carolina

General Statute § 14-54(a) is, as a matter of law, a “violent

felony”   within      the     meaning       of       the   ACCA,    vacated    Thompson’s

sentence,     and    remanded        the    case        for     resentencing.          United

States v. Thompson, 588 F.3d 197, 202 (4th Cir. 2009).

            Prior to the resentencing hearing, this court issued

its en banc decision in Simmons, in which we held that a North

Carolina conviction under the state’s Structured Sentencing Act

is a felony only if the actual defendant is eligible to have

imposed   upon      him   a   term    of     imprisonment          exceeding     one   year,

taking into account his criminal history and the nature of his

                                                 2
offense.       On remand, the district court found that Thompson’s

three 1993 North Carolina breaking and entering convictions, as

well as his 1998 and 2000 North Carolina breaking and entering

convictions, did not qualify as predicate felony offenses under

the    ACCA   in   light   of    Simmons.         It   resentenced      Thompson    to

ninety-two months’ imprisonment.                United States v. Thompson, No.

5:07-CR-00035-BO-1 (E.D.N.C. Oct. 12, 2011) (unpublished order).

              As to Thompson’s three 1993 North Carolina breaking

and entering convictions, which were sustained under the North

Carolina Fair Sentencing Act (“FSA”), effective until October 1,

1994,   the    district    court    determined         that   examination     of   the

sentence Thompson actually received, rather than the statutory

maximum under the FSA, was appropriate.                 Turning to the sentence

that    Thompson     actually       received—five         years’       imprisonment,

suspended—the      district      court    found    that   his   1993     convictions

were not predicate felony offenses because Thompson served less

than one year in custodial incarceration.

              With respect to Thompson’s 1998, 2000, and 2002 North

Carolina      convictions,      which    were    sustained     under    the   state’s

Structured Sentencing Act, the court found that only Thompson’s

2002 conviction qualified as a predicate felony offense under

the ACCA, reasoning that Thompson received a sentence of eleven

to fourteen months’ imprisonment.                 However, the court concluded

that Thompson’s 1998 and 2000 convictions did not qualify as

                                          3
predicate felony offenses because Thompson received sentences of

nine    to    eleven      months    and    ten      to     twelve     months     for    each

conviction, respectively.

              Whether a prior conviction qualifies as a predicate

offense under the ACCA is a question of statutory interpretation

that we review de novo.             United States v. Foster, 662 F.3d 291,

293    (4th    Cir.      2011).     The    ACCA       provides      that    a    defendant

convicted      under      18   U.S.C.      §       922(g)    who      has   three      prior

convictions        for    violent   felonies         is     subject    to    a   mandatory

minimum      sentence     of   fifteen     years’         imprisonment.          18    U.S.C.

§ 924(e)(1).          A “violent felony” is any crime punishable by a

term of imprisonment exceeding one year that:                           “(i) has as an

element the use, attempted use, or threatened use of physical

force against” another person; or (ii) is burglary, arson, or

extortion; involves explosives; “or otherwise involves conduct

that presents a serious potential risk of physical injury to

another.”      § 924(e)(2)(B).            We previously ruled on appeal that

breaking and entering under N.C. Gen. Stat. § 14-54(a) is, as a

matter of law, a violent crime under the ACCA; accordingly, the

analysis      of   whether     Thompson        should       have    been    sentenced     on

remand pursuant to the ACCA turns on whether Thompson’s North

Carolina convictions were punishable by a term exceeding one

year.



                                               4
               On appeal, the Government contends that Thompson was

eligible for a term of imprisonment in excess of one year under

the    North    Carolina          FSA       for     each    of   his     1993    breaking         and

entering     convictions,           and       that       Simmons     does     not       alter    this

conclusion.           The     fact          that     Thompson       received        a    five-year

sentence,      suspended,          for       his    consolidated         1993    breaking         and

entering        convictions,                the         Government          asserts,       further

establishes that his convictions qualify as predicate offenses.

In response, Thompson avers that his 1993 breaking and entering

convictions were not predicate felony offenses because he served

less than a year of custodial incarceration for the convictions

after    violating          his     probation.               Even      if     Thompson’s         1993

convictions         did    not    qualify          as    predicate      offenses         under    the

ACCA, the Government argues, the district court erred in failing

to sentence Thompson as an armed career criminal because each of

his additional North Carolina breaking and entering convictions

from 1998, 2000, and 2002 qualify as felony offenses.

               We    conclude       that           the     district     court        misconstrued

Simmons in finding that Thompson’s three 1993 convictions, as

well    as   his     1998     and       2000       convictions,        did    not       qualify    as

predicate felony offenses under the ACCA.                              Pursuant to Simmons,

in    evaluating          whether       a    defendant’s         prior       state      conviction

qualifies      as     a    felony       under       the     ACCA,     the     actual      sentence

imposed is irrelevant; rather, the relevant inquiry is whether

                                                    5
the actual    defendant        was    subject    to   a   potential           sentence     of

greater than one year of imprisonment.                  Thus, following Simmons,

a court must analyze whether the particular defendant, rather

than a defendant with the worst possible criminal history, could

have received a sentence in excess of one year for the offense.

            With respect to Thompson’s 1993 convictions, breaking

and entering is a Class H felony under North Carolina law, see

N.C. Gen. Stat. § 14–54 (2009); State v. Salters, 308 S.E.2d

512, 515 (N.C. Ct. App. 1983), and pursuant to North Carolina's

FSA, the presumptive sentence for a Class H felony was three

years in prison, with a maximum sentence of ten years.                                     See

State v. Lawrence, 667 S.E.2d 262, 264 (N.C. Ct. App. 2008)

(“Under the Fair Sentencing Act, a Class H felony carried a

maximum    punishment    of     ten    years,    with     a    presumptive          term   of

three   years.”).       Accordingly,        as   to   each         of    Thompson’s    1993

breaking and entering convictions, Thompson himself was subject

to a term of imprisonment exceeding one year.                           These convictions

therefore all qualify as predicate felony offenses under the

ACCA.

            Thompson’s North Carolina 1998 and 2000 breaking and

entering     convictions       likewise        qualify        as        predicate    felony

offenses,    as     Thompson    personally,       not     merely          a   hypothetical

defendant,    was    subject     to    a   maximum    term         of    imprisonment      in



                                           6
excess of one year for each offense under the state’s Structured

Sentencing Act.

              Accordingly, we find that the district court erred in

failing to sentence Thompson as an armed career criminal under

the ACCA, as Thompson had six qualifying prior violent felony

convictions.      We therefore vacate Thompson’s 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.

                                                      VACATED AND REMANDED




                                      7
