                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-4613


UNITED STATES OF AMERICA,

                Plaintiff – Appellant,

          v.

LORENZO KENYON MASON,

                Defendant – Appellee.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:08-cr-00103-LHT-1)


Submitted:   August 11, 2010                 Decided:   August 23, 2010


Before WILKINSON, KING, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Edward R. Ryan, United States Attorney,             Charlotte, North
Carolina, Amy E. Ray, Assistant United              States Attorney,
Asheville, North Carolina, for Appellant.           Randolph M. Lee,
Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Lorenzo Kenyon Mason pled guilty pursuant to a plea

agreement to one count of unlawful use of a firearm during and

in    relation        to     a   drug      trafficking             crime,     in   violation     of

18 U.S.C. § 924(c)(1) (2006), and was sentenced to sixty months

in    prison.         Mason      objected         to       his   presentence       investigation

report    (“PSR”)          insofar      as       it       relied    upon     an    earlier    North

Carolina conviction for conspiracy to discharge a weapon into

occupied       property          as    a     predicate           “crime      of    violence”     in

recommending that he be sentenced as a career offender under the

Sentencing      Guidelines.                The     district         court    sustained     Mason’s

objection       and        sentenced         him          without    employing       the     career

offender enhancement.                 The Government has appealed, arguing that

the district court erred when it disregarded the North Carolina

conviction as a career offender predicate offense.                                    Because we

agree, we vacate Mason’s sentence and remand for resentencing.

            After United States v. Booker, 543 U.S. 220 (2005), we

review a sentence for reasonableness.                                Gall v. United States,

552 U.S. 38, 51 (2007).                    The first step in this review requires

the    court     to        ensure     that       the       district        court   committed     no

significant procedural error.                         United States v. Evans, 526 F.3d

155, 161 (4th Cir. 2008).                   Procedural errors include “failing to

calculate       (or    improperly            calculating)            the    Guidelines       range,

treating the Guidelines as mandatory, failing to consider the

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[18   U.S.C.]       § 3553(a)        [(2006)]       factors,      selecting      a     sentence

based    on   clearly         erroneous       facts,    or     failing      to       adequately

explain    the      chosen       sentence-including          an    explanation         for    any

deviation from the Guidelines range.”                    Gall, 552 U.S. at 51.

              If,       and    only    if,     this    court       finds       the     sentence

procedurally            reasonable      can     we     consider          the     substantive

reasonableness           of   the     sentence       imposed.           United       States   v.

Carter,    564      F.3d      325,    328    (4th    Cir.    2009).         We   review       the

district court's refusal to classify Mason as a career offender

de novo.      United States v. Farrior, 535 F.3d 210, 223 (4th Cir.

2008).

              In this case, the Government presented the district

court     with      a    North      Carolina    judgment          of    conviction,       which

indicated that Mason was convicted of conspiracy to discharge a

weapon into occupied property.                     Because the substantive offense

of discharging a weapon into occupied property is a Class E

felony, see N.C. Gen. Stat. § 14-34.1 (2009), Mason’s criminal

judgment appropriately referred to his conspiracy conviction as

a Class F felony, in accordance with N.C. Gen. Stat. § 14-2.4

(2009).

              Mason does not deny that discharging a weapon into

occupied property is a crime of violence, but instead suggests

that conspiracy to discharge a weapon into occupied property is

not a crime of violence in this instance.                              In this regard, the

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Sentencing Commission has determined that “crimes of violence”

for purposes of a sentencing enhancement “include the offenses

of aiding and abetting, conspiring, and attempting to commit

such       offenses.”         U.S.   Sentencing        Guidelines      Manual      (“USSG”)

§ 4B1.2       cmt.    n.1   (2008)     (emphasis        added).       The    Commission's

judgment, as the Supreme Court has explained, was premised on

its    analysis        of     “empirical       sentencing      data    and       presumably

reflects an assessment that [aiding and abetting, conspiracy,

and attempt offenses] often pose a similar risk of injury as

completed offenses.”             James v. United States, 550 U.S. 192, 206

(2007).

               Moreover, we have rejected the notion that a North

Carolina conviction for conspiracy to commit a violent felony

under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(b)

(2006),       required      an   overt    act       element   before    the      conspiracy

conviction          could   serve    as    a    predicate     conviction         under   the

ACCA’s residual provision. *              See United States v. White, 571 F.3d

365,       370-71    (4th   Cir.     2009),     cert.    denied,      130   S.    Ct.    1140

(2010).             Rather,      Mason’s       previous       conspiracy         conviction


       *
       Because the language defining a violent felony in § 924(e)
is nearly identical to and materially indistinguishable from the
language defining a crime of violence in USSG § 4B1.2, we look
to case law interpreting both sections when examining whether a
prior crime falls within these sections.    See United States v.
Johnson, 246 F.3d 330, 333 & n.5 (4th Cir. 2001).



                                                4
establishes that he and his co-conspirator specifically intended

their agreement to discharge a weapon into occupied property to

be carried out.          See id. at 371 (citing to N.C.P.I.-Crim. 202.80

(2001)).           Because    a     North   Carolina      conspiracy     conviction

“presents an immediate, serious, and foreseeable physical risk

that arises concurrently with the formation of the conspiracy[,

w]hen conspirators have formed a partnership in crime to achieve

a   violent    objective,          and   when    they   intend    to   achieve   that

object, they have substantially increased the risk that their

actions will result in serious physical harm to others[,]” id.

at 371, or, as in this instance, that their actions will result

in “serious potential risk of physical injury to another.”                       USSG

§ 4B1.2(a)(2).

              It    is   of   no    event   that    Mason’s      criminal   judgment

referred to N.C. Gen. Stat. § 14-34.1—the substantive offense—as

the   statute       under     which      Mason    was   convicted.       Because   a

conspiracy offense in North Carolina “originated with, and is

defined by, the common law[,]” White, 571 F.3d at 367 (citations

omitted), the North Carolina conspiracy statute provides only

for the punishment to be imposed when an individual is convicted

of conspiring to commit a felony.                 See N.C. Gen. Stat. § 14-2.4

(“[A] person who is convicted of a conspiracy to commit a felony

is guilty of a felony that is one class lower than the felony he

or she conspired to commit[.]”).                   We discern no ambiguity in

                                            5
Mason’s judgment of conviction that would prevent the conviction

contained therein from serving as a career offender predicate

offense.

           Based   on   the   foregoing,   we   find    that   the   district

court erred when it sustained Mason’s objection to his career

offender classification.       Accordingly, without commenting on the

propriety of the calculations in the PSR or the factual findings

contained therein, we vacate and remand to the district court

for a new resentencing hearing to be conducted consistent with

this opinion.      We also express no opinion on the substantive

appropriateness of the sentence to be imposed on remand.                   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




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