                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4482


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DERRICK LAMONT SUMMERS,

                Defendant – Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 09-10329)


Submitted:   September 8, 2011           Decided:   September 13, 2011


Before MOTZ, GREGORY, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Ann L. Hester, Counsel
of Record, Beth Blackwood, Research and Writing Attorney,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,   Charlotte,
North Carolina, for Appellant.    Edward R. Ryan, Acting United
States Attorney, Mark A. Jones, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            In     2004,        Derrick   Lamont      Summers       pled       guilty       to

possessing    a    firearm       during   and    in   relation       to    a    crime        of

violence, in violation of 18 U.S.C. § 924(c)(1) (2006), and was

sentenced to seven years in prison with three years’ supervised

release.     Summers’ supervised release was revoked shortly after

he was released from prison, and the district court sentenced

him to thirty months in prison, to be followed by thirty months

of supervised release.

            Summers timely appealed, asserting that under United

States v. Rodriquez, 553 U.S. 377, 389 (2008) (cautioning that

when    a   judgment       of    conviction,     charging       document         or     plea

colloquy     “do[es]       not     show   that     the    defendant            faced        the

possibility of a recidivist enhancement,” the government might

be     precluded    from        establishing     that    the    conviction             is     a

qualifying       offense    triggering      application        of    the       sentencing

enhancement), the district court erred when it classified one of

his supervised release violations as a Grade A violation and,

thus, erred in calculating his sentencing range.                           According to

Summers, since the maximum prison term he faced for the North

Carolina offense underlying the violation was ten months, the

offense was not “punishable by a term of imprisonment exceeding

one      year.”        See         U.S.    Sentencing          Guidelines             Manual

§ 7B1.1(a)(A)(1)(ii) (2008).

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            We affirmed the district court’s judgment, rejecting

Summers’ argument as contrary to United States v. Harp, 406 F.3d

242, 246 (4th Cir. 2005) (holding that in order to “determine

whether a conviction is for a crime punishable by a prison term

exceeding one year, . . . [the court] consider[s] the maximum

aggravated sentence that could be imposed for that crime upon a

defendant       with      the    worst      possible         criminal      history”),       and

rejecting Summers’ argument that Rodriquez implicitly overruled

Harp.     See United States v. Summers, 361 F. App’x 539, 541 (4th

Cir.    2010)      (No.      09-4482)       (unpublished).               Summers    filed    a

petition for writ of certiorari with the Supreme Court, and the

Supreme     Court      vacated       this     court’s         judgment      affirming       the

criminal    judgment         and    remanded       the       case   to    this     court    for

further consideration in light of Carachuri-Rosendo v. Holder,

130 S. Ct. 2577 (2010).              We vacate Summers’ sentence and remand

the matter to the district court for resentencing.

            This       court       will     affirm       a    sentence      imposed     after

revocation of supervised release if it is within the applicable

statutory maximum and is not plainly unreasonable.                               See United

States v. Crudup, 461 F.3d 433, 437, 439–40 (4th Cir. 2006).                                 We

first     assess       the      sentence     for     reasonableness,          “follow[ing]

generally the procedural and substantive considerations that we

employ in our review of original sentences . . . with some

necessary modifications to take into account the unique nature

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of supervised release revocation sentences.”                    Id. at 438–39; see

United States v. Finley, 531 F.3d 288, 294 (4th Cir. 2008) (“In

applying     the     ‘plainly        unreasonable’        standard,       we   first

determine,    using       the   instructions      given    in    Gall    [v.   United

States,    552     U.S.    38,    51    (2007)],    whether       a     sentence   is

‘unreasonable.’”).         Only if a sentence is found procedurally or

substantively unreasonable will we “decide whether the sentence

is plainly unreasonable.”            Crudup, 461 F.3d at 439; see Finley,

531 F.3d at 294.           A sentence is “plainly unreasonable” if it

“run[s]    afoul    of     clearly     settled    law.”         United    States   v.

Thompson, 595 F.3d 544, 548 (4th Cir. 2010).

            We conclude that the district court procedurally erred

when it sentenced Summers.             We recently held in United States v.

Simmons, ___ F.3d ___, 2011 WL 3607266, *3 (4th Cir. Aug. 17,

2011), that a North Carolina offense 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.                 Thus, if Summers could not

have received a sentence greater than ten months for the North

Carolina crime underlying the challenged violation, the district

court procedurally erred when it calculated Summers’ sentencing

range and his sentence is, thus, procedurally unreasonable.

            Because       Summers      objected    to     his    sentencing     range

calculation in the district court, we must proceed to determine

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whether his sentence is “plainly” unreasonable.                                     See Thompson,

595     F.3d    at   546.           The     analysis         of    “plainly”         in    “plainly

unreasonable” is the same as that of “plain” in “plain error.”

Id. at 547-48.          “An error is plain ‘where the law at the time of

trial was settled and clearly contrary to the law at the time of

appeal.’”       United States v. Hughes, 401 F.3d 540, 547 (4th Cir.

2005)    (quoting       Johnson        v.    United      States,         520    U.S.       461,    468

(1997)); accord United States v. David, 83 F.3d 638, 645 (4th

Cir. 1996) (holding that an error is plain when “an objection at

trial would have been indefensible because of existing law, but

a    supervening     decision          prior      to     appeal         reverses      that     well-

settled    law”).            When    Summers      challenged            his   sentence       in    the

district       court,    his        challenge      was    clearly         foreclosed         by    our

decision in Harp.             Because we recognized in Simmons that Harp is

no    longer     good        law     under       Carachuri-Rosendo,                 however,      the

district court’s sentencing error was “plain.”

               Finally, we find that the district court’s error was

not harmless.        For a procedural sentencing error to be harmless,

the    Government        must       prove       that    the       error       did    not    have    a

“substantial and injurious effect or influence on the result.”

United    States        v.    Lynn,       592    F.3d     572,      585       (4th    Cir.     2010)

(internal quotation marks omitted).                          Because Summers could have

received a lesser sentence if the district court accepted his

argument       regarding            Violation         One,        the     Government         cannot

                                                  5
establish harmlessness.            See Thompson, 595 F.3d at 548 (finding

that Government could not establish harmlessness because had the

district      court    explicitly       considered      defendant’s   nonfrivolous

arguments for leniency, “it could conceivably have given him a

lower sentence”).

              Based on the foregoing, we vacate the district court’s

judgment      and     remand     the   matter      to   the   district    court   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




      *
       We of course do not fault the Government or the district
court for their reliance upon, and application of, unambiguous
circuit authority at the time of Summers’ sentencing.



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