                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4160


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

STEVE GIBSON, JR., a/k/a Gib,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:10-cr-00596-TLW-1)


Submitted:   September 22, 2011          Decided:   September 30, 2011


Before MOTZ, SHEDD, and DAVIS, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Carrie Fisher Sherard,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Pursuant to a plea agreement, Steve Gibson, Jr., pled

guilty to possession of a firearm and ammunition by a convicted

felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and

924(e) (2006).         The parties stipulated in the plea agreement to

an advisory Sentencing Guidelines range of 188 to 235 months’

imprisonment if Gibson was designated an armed career criminal.

See Fed. R. Crim. P. 11(c)(1)(C).                The district court sentenced

Gibson as an armed career criminal to 228 months’ imprisonment.

Gibson appealed.

              Gibson’s counsel has filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), stating that, in his

view,    there    are     no     meritorious         grounds      for    appeal    but

questioning the validity of Gibson’s guilty plea and his armed

career criminal sentence.           Gibson filed a pro se supplemental

brief asserting ineffective assistance of counsel at sentencing.

For the reasons that follow, we affirm in part, vacate in part,

and remand.

              Turning first to the validity of Gibson’s guilty plea,

where,   as    here,    the    defendant       did   not   move   to    withdraw   his

guilty plea in the district court, we review the adequacy of the

plea for plain error.           United States v. Martinez, 277 F.3d 517,

525 (4th Cir. 2002).           Our review of the record on appeal leads

us to conclude that the district court substantially complied

                                           2
with    the    mandates          of    Rule    11       in     accepting         Gibson’s         plea.

Moreover, the district court ensured that Gibson’s guilty plea

was    knowing       and    voluntary        and       was    supported         by    a    sufficient

factual basis.              United States v. DeFusco, 949 F.2d 114, 116,

119-20 (4th Cir. 1991).

              The district court designated Gibson an armed career

criminal based on two North Carolina state convictions involving

assault       with     a     deadly        weapon       and    a     North       Carolina         state

conviction       for       breaking        and/or      entering.           As    he       did    in    the

district        court,           defense       counsel             argues        that           Gibson’s

constitutional             rights     were     violated            because           the    predicate

offenses supporting his armed career criminal designation                                             were

not    charged       in    the    indictment           or    found    by     a   jury       beyond       a

reasonable       doubt.             Because     prior         convictions             supporting         a

defendant’s designation as an armed career criminal need not be

charged in the indictment or found by a jury beyond a reasonable

doubt,    this       argument         is    meritless.              See     United         States       v.

Thompson, 421 F.3d 278, 284 n.4 (4th Cir. 2005) (holding that an

indictment need not reference or list the prior convictions used

to enhance a sentence); United States v. Cheek, 415 F.3d 349,

352-54 (4th Cir. 2005) (holding that prior convictions used as

the basis for an armed career criminal sentence need not be

charged in the indictment or proven beyond a reasonable doubt).



                                                   3
                Although not raised by counsel and raised by Gibson

only   in       the    context       of     an    ineffective         assistance      of   counsel

claim, 1 Gibson’s armed career criminal designation is in question

because his breaking and/or entering conviction may not qualify

as a predicate offense.                     Because this issue is considered for

the first time on appeal, we review it for plain error.                                     United

States v. Hargrove, 625 F.3d 170, 184 (4th Cir. 2010), petition

for cert. filed (Mar. 8, 2011).

                To     qualify        for    the    fifteen       year    mandatory        minimum

punishment        under        the    Armed       Career       Criminal   Act       (“ACCA”),     18

U.S.C.      §    924(e),         a     felon      in        possession    of    a    firearm      or

ammunition        must     have        three      prior       convictions      for    a    violent

felony or serious drug offense or both, committed on occasions

different        from      one       another.           A    qualifying    offense         must   be

punishable            by   a     term       exceeding           one    year.          18    U.S.C.

§ 924(e)(2)(B).                Under      North    Carolina’s         structured      sentencing

scheme, sentences are calculated based on an offender’s criminal

       1
       In his pro se supplemental brief, Gibson contends that
counsel was ineffective for failing to assert at sentencing that
his breaking and entering conviction did not qualify as an armed
career criminal predicate offense. Because the record does not
conclusively show that Gibson was denied effective assistance of
counsel, see United States v. McNamara, 74 F.3d 514, 516-17 (4th
Cir. 1996) (holding that counsel’s failure to anticipate change
in law does not amount to ineffective assistance), Gibson’s
claim is not cognizable on direct appeal.      United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999); United States v.
King, 119 F.3d 290, 295 (4th Cir. 1997).



                                                    4
history    and      whether      his     offense        falls   within      the    mitigated,

presumptive,        or     aggravated          range.        N.C.    Gen.    Stat.       §    15A-

1340.17(c)-(d) (Lexis Nexis 2009).

               At   the     time    of    Gibson’s          conviction     and    sentencing,

existing precedent established that a prior conviction for a

violent    felony        or   serious        drug     offense       was    punishable        by   a

prison    term      exceeding          one     year     if     the     maximum     aggravated

sentence that would be imposed for that crime upon a defendant

with the worst possible criminal history was more than a year.

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

Recently, however, we overruled Harp with our en banc decision

in United States v. Simmons, 649 F.3d 237, 2011 WL 3607266 (4th

Cir. Aug. 17, 2011) (No. 08-4475), where we held 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.            Simmons, 2011 WL 3607266, at *3.

               Gibson      did   not     receive        a    sentence     exceeding      twelve

months    on    his      breaking      and/or        entering    conviction        and       it   is

unclear    from       the     record      on     appeal       whether      this    conviction

exposed him to a sentence exceeding twelve months and therefore

was properly counted as the third predicate offense qualifying

him for armed career criminal designation.                           If not, the maximum

sentence Gibson faced was ten years’ imprisonment, 18 U.S.C.

                                                 5
§ 924(a)(2), a sentence well below the 228-month sentence he

received.

            For these reasons, we affirm Gibson’s conviction, but

vacate    his   sentence     and   remand     for   the      district    court     to

consider Gibson’s sentence in light of Simmons. 2                       This court

requires    that   counsel    inform   his    client,       in   writing,   of    the

right to petition the Supreme Court of the United States for

further    review.    If     the   client    requests       that   a   petition    be

filed,    but   counsel    believes    that    such     a    petition    would    be

frivolous, then counsel may move in this court for leave to

withdraw from representation.          Counsel’s motion must state that

a copy thereof was served on the client.                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.

                                                                 AFFIRMED IN PART,
                                                                  VACATED IN PART,
                                                                      AND REMANDED




     2
       In accordance with Anders, we have reviewed the entire
record and found no additional meritorious issues for appeal.



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