            Rehearing en banc granted, March 18, 2011




                        PUBLISHED


UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                Plaintiff-Appellee,
               v.
JASON EDWARD SIMMONS,
             Defendant-Appellant.              No. 08-4475


NORTH CAROLINA ADVOCATES FOR
JUSTICE,
      Amicus Supporting Appellant.
                                       
 On Remand from the Supreme Court of the United States.
                 (S. Ct. No. 09-676)
                Argued: December 8, 2010
                Decided: February 16, 2011
    Before Sandra Day O’CONNOR, Associate Justice
 (Retired), Supreme Court of the United States, sitting by
  designation, and DUNCAN and AGEE, Circuit Judges.


Affirmed by published opinion. Judge Agee wrote the opin-
ion, in which Justice O’Connor and Judge Duncan concurred.


                         COUNSEL
ARGUED: Andrew Brady Banzhoff, DEVEREUX & BAN-
ZHOFF, PLLC, Asheville, North Carolina, for Appellant.
2                 UNITED STATES v. SIMMONS
Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON
BRIEF: Anne M. Tompkins, United States Attorney, Adam
Morris, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee. Christopher C. Fialko, RUDOLF WIDEN-
HOUSE & FIALKO, Charlotte, North Carolina, for Amicus
Supporting Appellant.


                         OPINION

AGEE, Circuit Judge:

   Jason Edward Simmons challenges the district court’s use
of a prior North Carolina state conviction for purposes of
imposing an enhanced sentence under 21 U.S.C.
§ 841(b)(1)(D). The case is before us after a remand from the
Supreme Court. Simmons v. United States, 130 S. Ct. 3455
(June 21, 2010). In a previous unpublished per curiam opin-
ion, we concluded that our decision in United States v. Harp,
406 F.3d 242 (4th Cir. 2005), remained controlling precedent
after the Supreme Court’s intervening decision in United
States v. Rodriquez, 553 U.S. 377 (2008). United States v.
Simmons, 340 F. App’x 141 (4th Cir. 2009) (per curiam)
(unpublished). We therefore affirmed the judgment of the dis-
trict court because, under Harp, Simmons’ state conviction
qualified as a "felony drug offense" as defined in 21 U.S.C.
§ 802(44), and therefore supported an enhanced sentence
under § 841(b)(1)(D). Id. at 143-44.

   The Supreme Court granted certiorari, vacated our opinion,
and remanded for further consideration in light of Carachuri-
Rosendo v. Holder, 560 U.S. ___, 130 S. Ct. 2577 (2010). See
130 S. Ct. 3455. Having made that consideration, we again
affirm the judgment of the district court.
                        UNITED STATES v. SIMMONS                                3
                                        I.

   Simmons pled guilty, without the benefit of a written plea
agreement, to three criminal counts in the United States Dis-
trict Court for the Western District of North Carolina: (1) con-
spiracy to distribute at least 100 kilograms of marijuana, in
violation of 21 U.S.C. §§ 841(a)(1) and 846; (2) possession of
at least five kilograms of marijuana with intent to distribute,
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D); and (3) pos-
session of at least twenty kilograms of marijuana with intent
to distribute, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A)(v).

   The Government had previously filed an information pur-
suant to 21 U.S.C. § 851 notifying Simmons that it intended
to rely on a January 1996 North Carolina state conviction
("1996 conviction") for possession with intent to sell or
deliver marijuana, in violation of N.C. Gen. Stat. § 90-95(a),
as the basis for seeking an enhanced sentence under 21 U.S.C.
§ 841(b)(1)(D).1 Simmons opposed the Government’s use of
the 1996 conviction to support an enhanced sentence, arguing
that the conviction did not qualify as a "felony drug offense"
as defined in 21 U.S.C. § 802(44).2 Furthermore, Simmons
argued that even if the 1996 conviction was a § 802(44) fel-
ony drug offense, that conviction had been obtained in viola-
tion of his Sixth Amendment right to effective counsel. The
district court rejected both of Simmons’ arguments and sen-
tenced Simmons to 120 months’ imprisonment on each count,
to be served concurrently.
    1
      Section 841(b)(1)(D) provides that in a case involving possession with
intent to distribute less than 50 kilograms of marijuana, "any person [who]
commits such a violation after a prior conviction for a felony drug offense
has become final, shall be sentenced to a term of imprisonment of not
more than 10 years . . . ."
    2
      21 U.S.C. § 802(44) defines "felony drug offense" to be "an offense
that is punishable by imprisonment for more than one year under any law
. . . of a State . . . that prohibits or restricts conduct relating to . . . mari-
huana . . . ."
4                     UNITED STATES v. SIMMONS
   Simmons appealed his sentence, making the same argu-
ments he made in the district court. Specifically, he contended
that he was not subject to the mandatory minimum sentence
under § 841(b)(1)(D) for his current federal drug convictions
because under North Carolina’s sentencing system, he could
not have received a sentence in excess of 12 months for his
1996 conviction because no aggravating factors were present
in his case.3 Simmons asserted that because his 1996 convic-
tion could not subject him to imprisonment for more than a
year, it was not a conviction for a "felony drug offense" as
defined in § 802(44).

   As noted, we affirmed the district court’s judgment based
on our decision in Harp. Following the vacatur of our opinion
in the Supreme Court’s remand order, we ordered supplemen-
tal briefing and heard additional oral argument on the applica-
bility of Carachuri-Rosendo to the issues in this case. For the
reasons discussed below, we do not find Carachuri-Rosendo
compels a different result in the case at bar. Our prior prece-
dent in Harp is thus unaffected by that decision and continues
to control the disposition of this case.
    3
    There is no dispute that the 1996 conviction was designated a Class I
felony under North Carolina law. Under the applicable North Carolina
statute, the maximum sentence for a defendant with the worst criminal his-
tory convicted of a Class I felony with aggravating factors is fifteen
months. The maximum sentence for a defendant with any lower criminal
history or with presumptive or mitigating offense factors is less than
twelve months. N.C. Gen. Stat. § 15A-1340.17(c)-(d).
   Simmons’ 1996 conviction resulted in a suspended sentence of six to
eight months, which was within the presumptive range pursuant to the
statutory sentencing structure set forth in N.C. Gen. Stat. § 15A-
1340.17(c), which took into consideration both the nature of the offense
and Simmons’ criminal history.
                      UNITED STATES v. SIMMONS                           5
                                    II.

                                    A.

   We begin by summarizing the Supreme Court’s decision in
Carachuri-Rosendo. The issue before the Court was whether
one of Carachuri-Rosendo’s prior state misdemeanor convic-
tions for drug possession constituted an "aggravated felony"
for immigration law purposes under 8 U.S.C. § 1229b(a)(3).
See 130 S. Ct. at 2580. An aggravated felony conviction
would make Carachuri-Rosendo ineligible for discretionary
relief from removal proceedings.4 Looking through "[t]he
maze of statutory cross-references," the Supreme Court held
that Carachuri-Rosendo’s state conviction was not an "aggra-
vated felony" under the applicable definitional section, 8
U.S.C. § 1101(a)(43). Id. at 2580-81.

   The Court began its analysis by observing the cross-
referenced federal statutes criminalizing simple possession of
the narcotics at issue in Carachuri-Rosendo’s state conviction.
Based on that analysis, the Court concluded Carachuri-
Rosendo’s acts underlying the state court conviction would
have subjected him to a maximum term of imprisonment of
less than one year had the prosecution been in federal court
unless the conviction was for what the Court denominated
"recidivist simple possession," which was punishable by a
term of imprisonment of up to two years. Thus, only a convic-
tion for recidivist possession "conceivably" qualified as an
"aggravated felony" under 8 U.S.C. § 1101(a)(43). Id. at
2581-83.

  The Supreme Court then rejected the argument that
Carachuri-Rosendo’s state conviction was an "aggravated fel-
ony" because he "could have been prosecuted" in federal
  4
   8 U.S.C. § 1229b(a)(3) provides that certain individuals may seek dis-
cretionary relief in the form of cancellation of removal or waiver of inad-
missibility if they have "not been convicted of any aggravated felony."
6                  UNITED STATES v. SIMMONS
court for recidivist simple possession due to his prior drug
offenses. Id. at 2584, 2587 (emphasis added). Instead, the
Court looked to Carachuri-Rosendo’s actual offense of con-
viction, which was a simple possession offense. The Supreme
Court also noted that Texas law authorizes a sentencing
enhancement for such a conviction only if the prosecutor
proves the defendant had been previously convicted of an
offense of a similar class. Although the Texas prosecutor
could have charged Carachuri-Rosendo as a recidivist and
sought such an enhancement, the prosecutor elected not to do
so, and instead charged him only for simple possession. Id. at
2585-88. Thus under the state statute by which Carachuri-
Rosendo was charged and convicted, Carachuri-Rosendo’s
conviction was for simple possession without a recidivist
component.

   The Court concluded that adopting the Government’s posi-
tion would ignore the text of 8 U.S.C. § 1229b(a)(3), which
requires that an individual have been "convicted of a[n] aggra-
vated felony" rather than that the individual "might have or
could have been charged" with a felony. Id. at 2586 (internal
quotation marks omitted). The Supreme Court emphasized

    the Government’s abstracted approach to [drug
    offenses] cannot be reconciled with the more con-
    crete guidance of 8 U.S.C. § 1229b(a)(3), which lim-
    its the Attorney General’s cancellation authority only
    when the noncitizen has actually been "convicted of
    a[n] aggravated felony" — not when he merely
    could have been convicted of a felony but was not.

Id. at 2587.

   In conclusion, the Supreme Court’s decision in Carachuri-
Rosendo held that "the text and structure of the relevant statu-
tory provisions demonstrate" that

    the defendant must have been actually convicted of
    a crime that is itself punishable as a felony under
                  UNITED STATES v. SIMMONS                   7
    federal law. The mere possibility that the defendant’s
    conduct, coupled with facts outside of the record of
    conviction, could have authorized a felony convic-
    tion under federal law is insufficient to satisfy the
    statutory command that a noncitizen be "convicted
    of a[n] aggravated felony" before he loses the oppor-
    tunity to seek cancellation of removal.

Id. at 2589 (quoting 8 U.S.C. § 1229b(a)(3)).

                              B.

   On remand, Simmons contends the "practical effect of
[Carachuri-Rosendo] is to discard the ‘hypothetical defen-
dant’ analysis [of Harp] and to replace it with a framework
which looks at whether the defendant was actually prose-
cuted" for an offense with characteristics subjecting him to an
actual "possibility of a sentence in excess of one year."
(Appellant’s Supp. Br. 6.) Simmons asserts that because his
criminal history placed him in "prior record level 1" for his
state Class I felony conviction under N.C. Gen. Stat. § 15A-
1340.17, he did not face a sentence in excess of one year
under any circumstances. Accordingly, Simmons maintains
that his 1996 conviction does not qualify as a "felony drug
offense" for purposes of enhancing his sentence under 21
U.S.C. § 842(b)(1)(D).

   The Government responds that Carachuri-Rosendo’s hold-
ing is narrower than Simmons contends and does not address
the issue in this case, which was previously decided in Harp
and is supported by the Supreme Court’s decision in
Rodriquez. Pointing to Rodriquez, the Government observes
that the Supreme Court considered and rejected the contention
that mandatory sentencing guidelines that cap a defendant’s
punishment range decrease the "maximum term" of imprison-
ment analysis under the Armed Career Criminal Act’s
("ACCA") recidivist enhancements. The Government also
distinguishes Carachuri-Rosendo by pointing out "an impor-
8                  UNITED STATES v. SIMMONS
tant textual difference" between the statute at issue there —
which required a defendant to be "convicted of a[n] aggra-
vated felony" — and the statute at issue here, which requires
a defendant be convicted of an offense "punishable" by more
than one year of incarceration. (Appellee’s Supp. Br. 11.)
Lastly, the Government posits there is a difference between
the hypothetical disfavored in Carachuri-Rosendo — whether
the defendant could have been prosecuted, but was not, for a
particular offense — and the analysis engaged in here —
whether the offense for which the defendant was actually con-
victed could have provided a particular term of imprisonment.

                               C.

   At the outset, we note that when the Supreme Court grants
certiorari, vacates an opinion, and remands for further consid-
eration, it makes no determination on the merits of the under-
lying opinion. Instead, such an order indicates that intervening
case law "may affect the outcome of the litigation" and that
the intermediary appellate court should have the opportunity
to fully consider the issue in light of the additional precedent.
See Tyler v. Cain, 533 U.S. 656, 666 n.6 (2001) (emphasis
added) (citing Lawrence v. Chater, 516 U.S. 163, 166-68
(1996) (per curiam)). After reviewing the issue anew, we are
free to enter the same judgment if we "conclude that the new
precedent does not require a different outcome," just as we
may conclude that "the intervening precedent will result in a
different outcome." Vazquez-Valentin v. Santiago-Diaz, 459
F.3d 144, 147-48 (1st Cir. 2006) (citations omitted).

   Having reviewed the Supreme Court’s decision in
Carachuri-Rosendo and the issues raised in the case at bar,
we conclude that Carachuri-Rosendo is inapplicable to our
present inquiry. That Carachuri-Rosendo involved an immi-
gration proceeding, and the case sub judice concerns criminal
sentencing, is a distinction, but it is not dispositive standing
alone. What we find dispositive is that the plain language of
the immigration statute interpreted by the Supreme Court in
                    UNITED STATES v. SIMMONS                     9
that case differs in critical respects from the statute at issue in
the criminal proceeding before us. Whatever the impact of
Carachuri-Rosendo in other settings, it does not compel a dif-
ferent view of the plain language of § 802(44).

   The inquiry in Carachuri-Rosendo was whether Carachuri-
Rosendo had been "convicted of a[n] ‘aggravated felony.’"
See 130 S. Ct. at 2580; see also 8 U.S.C. § 1229b(a)(3). In
making that determination, the Supreme Court considered
only the offense with which Carachuri-Rosendo was actually
charged and convicted. See id. at 2589 ("The mere possibility
that the defendant’s conduct, coupled with facts outside of the
record of conviction, could have authorized a felony convic-
tion under federal law is insufficient to satisfy the statutory
command that a noncitizen be ‘convicted of a[n] aggravated
felony’ before he loses the opportunity to seek cancellation of
removal."). In other words, because the Court was concerned
with how that specific defendant was actually charged—its
inquiry was necessarily defendant-specific.

   In contrast, the issue before us here is whether the offense
for which the defendant was convicted was "punishable" by
more than one year of incarceration. 21 U.S.C. § 802(44).
This case does not raise the question from Carachuri-Rosendo
of whether a state court prosecutor could have charged Sim-
mons differently. The specific circumstances surrounding
Simmons’ conviction and the prosecutor’s charging decisions
are irrelevant. We are only to evaluate the nature of Simmons’
statutorily-created offense. Thus, the inquiry in this case is
offense-specific.

   In order for Simmons to be subject to the enhanced sen-
tencing provisions of § 841(b)(1)(D), he must have "a prior
conviction for" "an offense that is punishable by imprison-
ment for more than one year." Relying on Carachuri-
Rosendo, Simmons contends that decision requires us to no
longer examine the possible punishments under his offense of
conviction, but instead to look to the specific factors support-
10                 UNITED STATES v. SIMMONS
ing only his 1996 conviction to determine whether he could
have received a sentence of imprisonment exceeding one
year. We disagree.

   Simmons’ argument is contrary to the plain language of the
statute defining "felony drug offense" as an "offense . . . pun-
ishable by imprisonment for more than one year." Section
802(44) does not define a felony drug offense in terms of an
individual defendant’s particular sentencing factors, but in
terms of the statutorily-created offense. Simmons did not con-
tend in the district court, in the previous appeal, or now, that
other defendants identically charged and convicted under the
same North Carolina statute could not have been imprisoned
for more than one year. Nor could he have done so. As we
explained in Harp:

     In [United States v. Jones, 195 F.3d 205 (4th Cir.
     1999)], we held, in the context of a felon-in-
     possession-of-firearm conviction, see 18 U.S.C.A.
     § 922(g)(1) (West 2000), that a prior North Carolina
     conviction was for "a crime punishable by imprison-
     ment for a term exceeding one year," id., if any
     defendant charged with that crime could receive a
     sentence of more than one year. See Jones, 195 F.3d
     at 206-07. In so doing, we reasoned:

         [I]n § 922(g)(1), "punishable" is an adjec-
         tive used to describe "crime." As such, it is
         more closely linked to the conduct, the
         crime, than it is to the individual convicted
         of the conduct. Congress could have written
         § 922(g)(1) differently had it intended to
         focus on the individual in particular rather
         than the crime for which the individual was
         convicted. Instead of the phrase, "individual
         convicted . . . of a crime punishable by
         imprisonment for a term exceeding one
         year," Congress could have used the phrase,
                  UNITED STATES v. SIMMONS                   11
         "individual punished by imprisonment for a
         term exceeding one year" or even "individ-
         ual sentenced for imprisonment for a term
         exceeding one year."

    Id. at 207 (internal quotation marks omitted) (alter-
    ations in original). Thus, to determine whether a con-
    viction is for a crime punishable by a prison term
    exceeding one year, Jones dictates that we consider
    the maximum aggravated sentence that could be
    imposed for that crime upon a defendant with the
    worst possible criminal history. See id. at 206-08.

Harp, 406 F.3d at 246. Nothing in Carachuri-Rosendo
changes the fact that "punishable" in § 802(44) is an adjective
modifying the "offense" of conviction, not the acts underlying
a particular defendant’s case.

   As we concluded in Harp, the statute requires us to exam-
ine whether the statutory offense, not the particular defen-
dant’s conduct, is "punishable" by more than one year of
imprisonment. To do so, we look to the maximum aggravated
sentence that could be imposed upon a defendant with the
worst criminal history category for that offense in order to
define how that offense is "punishable." Adopting Simmons’
argument would require us to rewrite the plain language of
§ 802(44) to define "felony drug offense" not as "an offense
that is punishable by imprisonment for more than one year,"
but as, for example, "an offense for which the defendant is
punished by imprisonment for more than one year" or "an
offense for which the defendant is subject to punishment by
imprisonment for more than one year." We are, of course,
obliged to give effect to the statute as written and are not at
liberty to rewrite it. La. Pub. Serv. Comm’n v. FCC, 476 U.S.
355, 376 (1986) ("As we so often admonish, only Congress
can rewrite [a] statute.").

   Unlike the analysis rejected in Carachuri-Rosendo, then,
the analysis required in Harp does not look to facts beyond
12                    UNITED STATES v. SIMMONS
the offense of conviction to determine, hypothetically,
whether a defendant could have been charged with another
offense that would satisfy the requirements at issue. Instead,
we consider the defendant’s actual offense of conviction, and
how that offense is "punishable." While the lower courts in
Carachuri-Rosendo erred by looking outside the offense of
conviction to construe the defendant’s actual conviction as a
conviction for another offense in order to qualify as an aggra-
vated felony, here we are looking at Simmons’ actual offense
of conviction to determine whether that offense satisfies the
statutory requirement of being "punishable by imprisonment
for more than one year."

                                    D.

   Having concluded that Carachuri-Rosendo does not impli-
cate the analysis at issue in this case, we turn to whether Sim-
mons’ conviction is for an "offense . . . punishable for more
than one year." In light of our decision in Harp,5 that inquiry
is straightforward: Simmons’ 1996 conviction was a violation
of N.C. Gen. Stat. § 90-95(a), which is a Class I felony. Pur-
suant to N.C. Gen. Stat. § 15A-1340.17(d), the maximum sen-
tence for a defendant with the worst criminal history
convicted of a Class I felony with aggravating factors is fif-
teen months. Thus, Simmons’ 1996 conviction is clearly for
an "offense that is punishable by imprisonment for more than
one year."6 Accordingly, the district court did not err in rely-
  5
     The statutory definition of felony drug offense in 21 U.S.C. § 802(44)
is identical to the provision at issue in Harp, United States Sentencing
Guidelines Manual §§ 4B1.1(a) and 4B1.2(b) ("an[ ] offense . . . punish-
able by imprisonment for a term exceeding one year"), and it is indistin-
guishable from the statute at issue in Jones, 18 U.S.C. § 922(g)(1) ("a
crime punishable by imprisonment for a term exceeding one year").
   6
     During the original appeal, we rejected Simmons’ contention that the
Supreme Court’s decision in Rodriquez, which was decided after he was
sentenced, implicitly overruled our decision in Harp. Nothing has tran-
spired which changes our view on that issue. If anything, the Supreme
Court’s analysis in Rodriquez is in harmony with the ratio decidendi of
                      UNITED STATES v. SIMMONS                           13
ing on the 1996 conviction as a basis for enhancing Simmons’
sentence under 21 U.S.C. § 841(b)(1)(D).

                                    III.

   Simmons also argues that the district court erred in failing
to provide a hearing in violation of 21 U.S.C. § 851(c)(1) so
he could establish that counsel in his 1996 conviction pro-
vided ineffective assistance.7 However, as the Government
points out, any failure to provide such a hearing would consti-
tute harmless error because Simmons’ collateral attack on the
prior conviction was plainly barred by the five-year statute of
limitations in 21 U.S.C. § 851(e).8

   The Government’s information in this case was filed on
August 17, 2007. Simmons’ prior conviction occurred on Jan-
uary 29, 1996, well beyond the five-year timeframe for a col-
lateral challenge to the validity of that conviction. Simmons
argues that he is not subject to the five-year limitation because

our prior holdings in Harp and Jones, which require the Court to "consider
the maximum aggravated sentence that could be imposed for that crime
upon a defendant with the worst possible criminal history." Harp, 406
F.3d at 246 (emphasis omitted) (citing Jones, 195 F.3d at 206-08 (recon-
ciling the language of § 922(g)(1) "with North Carolina’s sentencing
scheme by viewing the offense statutory maximum as the statutory maxi-
mum for the crime, regardless of the prior criminal record status of the
defendant.")).
   7
     Simmons alleges that his counsel’s representation at that time was con-
stitutionally deficient because he erroneously informed Simmons that
pleading guilty was the only way to avoid jail time when, in fact, he was
only subject to probation.
   8
     The statute provides that
    No person who stands convicted of an offense under this part
    may challenge the validity of any prior conviction alleged under
    this section which occurred more than five years before the date
    of the information alleging such prior conviction.
21 U.S.C. § 851(e).
14                UNITED STATES v. SIMMONS
he was unaware of the substantial constitutional defects in his
prior conviction until consulting with counsel in the present
case. Simmons fails, however, to produce authority support-
ing any such notice requirement in circumstances such as
these and we find none. Therefore, even if we assume Sim-
mons properly requested a hearing to challenge the prior con-
viction (an issue we need not decide), any error in not
conducting such a hearing was harmless as a matter of law.

                             IV.

   For the reasons set forth above we affirm the judgment of
the district court.

                                                  AFFIRMED
