                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4794


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KENDRICK MONTRELL COFIELD,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:09-cr-00048-BO-1)


Submitted:   September 15, 2011          Decided:   September 22, 2011


Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Ann M.
Hayes,   Jennifer   P.   May-Parker,  Assistant   United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Kendrick       Montrell      Cofield     appeals         his   conviction

following his conditional guilty plea to possession of a firearm

by a convicted felon, 1 in violation of 18 U.S.C. §§ 922(g)(1),

924 (2006).            On appeal, Cofield argues that the North Carolina

conviction forming the basis for his federal conviction was not

punishable by more than one year in prison, and therefore he is

not a convicted felon.                 We agree.        Accordingly, we vacate the

judgment         and    remand    with     directions     that      the    indictment       be

dismissed.

                 We    review    de   novo    a     district   court’s      denial     of    a

motion      to    dismiss       the   indictment      where    denial      depends     on    a

question of law.              United States v. Hatcher, 560 F.3d 222, 224

(4th Cir. 2009).              Section 922(g)(1) prohibits the possession of

a firearm by any person “who has been convicted in any court of,

a   crime     punishable         by   imprisonment      for    a    term   exceeding     one

year.”       18 U.S.C. § 922(g)(1).

                 Cofield was charged and convicted consistent with our

decision in United States v. Harp, 406 F.3d 242, 246-47 (4th

Cir.       2005).        We   recently       overruled    Harp      with    our   en   banc

decision         in    United    States    v.     Simmons,     __   F.3d    __,   2011      WL

       1
       By entering a conditional guilty plea, Cofield preserved
his right to appeal the district court’s denial of his motion to
dismiss his indictment.



                                                2
3607266, at *3 (4th Cir. Aug. 17, 2011), in which we held that a

North      Carolina     conviction    may    not    be   classified    as    a   felony

based upon the maximum aggravated sentence that could be imposed

upon       a   repeat   offender    if     the   particular    defendant      was   not

eligible for such a sentence.                Simmons, 2011 WL 3607266, at *8.

As   established        by   his   state    court   judgment,      Cofield    was   not

eligible for a sentence that exceeded one year.                           Thus, under

Simmons, Cofield’s predicate North Carolina conviction was not

for a crime punishable by more than one year in prison and thus

cannot support his federal indictment. 2

                Accordingly, we vacate the judgment and remand with

directions that the district court dismiss the indictment.                          The

Clerk is directed to issue the mandate forthwith.                         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




       2
       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 Cofield’s indictment and
conviction.



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