                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4455


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LIONEL RAY MCCALL,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City.   Terrence W.
Boyle, District Judge. (5:10-cr-00219-BO-3)


Submitted:   December 13, 2011            Decided:   December 21, 2011


Before SHEDD, DAVIS, and KEENAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Terry F. Rose, Smithfield, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Lionel Ray McCall was convicted following his guilty

plea to conspiracy to possess with intent to distribute fifty

grams   or    more    of     cocaine      base,     in    violation     of    21       U.S.C.

§§ 841(a)(1), 846 (2006).             At sentencing, McCall asserted, inter

alia, that his prior North Carolina conviction for maintaining a

vehicle,     dwelling,      or   place     for     controlled       substances         (“drug

conviction”) did not qualify as a felony controlled substance

offense, as required for the career offender enhancement, U.S.

Sentencing    Guidelines         Manual      (“USSG”)      § 4B1.1    (2010),      because

his sentence for that conviction did not exceed twelve months’

imprisonment.          The       district         court    denied     the     objection,

classified McCall a career offender, and imposed a 262-month

sentence.     McCall timely appealed.

             On appeal, McCall argues that his North Carolina drug

conviction is not a proper predicate for the career offender

enhancement because, under our recent decision in United States

v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), the drug

conviction     was    not     punishable          by     imprisonment       for    a    term

exceeding     one    year.       In    its    response      brief,    the     Government

concedes that McCall should be resentenced in light of Simmons.

For the reasons that follow, we vacate McCall’s sentence and




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remand this case to the district court for resentencing, 1 but we

affirm McCall’s conviction, which is not challenged on appeal.

              McCall’s       prior      North    Carolina      conviction     was     not

punishable by imprisonment for a term exceeding one year.                             See

N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting out minimum

and    maximum        sentences      applicable        under       North    Carolina’s

structured sentencing scheme).                  When McCall raised this argument

in the district court, it was foreclosed by our decision in

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

However, we have since overruled Harp with our en banc decision

in Simmons, in which we adopted a similar argument in favor of

the defendant.         See Simmons, 649 F.3d at 241, 246-47.                      In view

of    our   holding     in    Simmons,     we     vacate   McCall’s       sentence    and

remand      this     case    to   the    district     court       for   resentencing. 2

Finally, we affirm McCall’s conviction.                     We dispense with oral

argument because the facts and legal contentions are adequately



       1
       Because we conclude that McCall is entitled to relief
under Simmons, we need not resolve McCall’s alternative
challenge to the career offender enhancement that his prior
North Carolina conviction for taking indecent liberties with a
child does not qualify as a “crime of violence.”
       2
       The parties also agree that McCall should be resentenced
in accordance with the Fair Sentencing Act of 2010, Pub. L. No.
111–220, 124 Stat. 2372 (2010).   Because we are remanding this
case for resentencing in light of Simmons, we decline to address
this issue, leaving it instead for the district court to
consider in the first instance.



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presented in the materials before the Court and argument would

not aid the decisional process.

                                             AFFIRMED IN PART,
                                              VACATED IN PART,
                                                  AND REMANDED




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