                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4257


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MICHAEL LEWIS WHITE,

                Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 09-10491)


Submitted:   September 15, 2011           Decided:   October 20, 2011


Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Reversed and remanded by unpublished per curiam opinion.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, Anne 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Unpublished opinions are not binding precedent in this circuit.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:

               Michael Lewis White pleaded guilty to possession of a

firearm    after        having       previously            been       convicted       of   a    crime

punishable      by     a    term     of    imprisonment            exceeding        one    year,      in

violation of 18 U.S.C. § 922(g)(1) (2006).                               White then moved to

withdraw his guilty plea, arguing that he did not have any prior

convictions      that       were       punishable           by    a    term    of     imprisonment

exceeding one year.                The district court denied his motion and

sentenced      White       to    120      months      of     imprisonment.             This      court

affirmed his conviction on appeal in reliance upon our decision

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

United States v. White, 362 F. App’x 348 (2010) (unpublished).

The   Supreme         Court     granted      White’s             petition      for     certiorari,

vacated the judgment, and remanded the appeal to this court for

reconsideration in light of Carachuri-Rosendo v. Holder, 130 S.

Ct. 2577 (2010).                See White v. United States, 131 S. Ct. 84

(2010).         For     the     reasons      that          follow,       we    reverse         White’s

conviction.

               This    court       reviews       a    district         court’s        denial     of    a

motion    to    withdraw         a     guilty        plea    for       abuse    of     discretion.

United    States       v.     Dyess,       478   F.3d        224,      237     (4th    Cir.      2007)

(citation omitted).              A defendant seeking to withdraw his guilty

plea bears the burden of demonstrating that withdrawal should be

granted.       Id. (citation omitted).                  In deciding whether to permit

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a defendant to withdraw his guilty plea, a district court should

consider:

     (1)   whether  the  defendant has  offered  credible
     evidence that his plea was not knowing or not
     voluntary; (2) whether the defendant has credibly
     asserted his legal innocence; (3) whether there has
     been a delay between entry of the plea and filing of
     the motion; (4) whether the defendant has had close
     assistance of counsel; (5) whether withdrawal will
     cause prejudice to the government; and (6) whether
     withdrawal will inconvenience the court and waste
     judicial resources.

United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000)

(citation omitted).

            White       argued   that   he     was       legally   innocent    of   the

offense    of    conviction      because     none    of     his    prior   convictions

qualified       as   predicate    offenses      for       conviction.       White   is

correct.        White’s prior convictions consisted of Class H and

Class I felonies under North Carolina law.                         Moreover, at the

time of his convictions, his prior record level was never above

a level II.            Under North Carolina law, the maximum term of

imprisonment for a Class H felony with a record level of II is

twelve months and the maximum term for a Class I felony is ten

months.          See    N.C.     Gen.   Stat.        §     15A-1340.17(d)      (2007).

Therefore, White could not have received a term of imprisonment

exceeding twelve months for any of his prior convictions.

            In United States v. Simmons, 649 F.3d 237 (4th Cir.

2011) (en banc), we determined that an offense is not punishable


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by a term exceeding one year of imprisonment if the defendant

could    not   have    actually   received       more    than    one    year   of

imprisonment    for    that   offense,   based     on    his    prior   criminal

history and other factors.         As White could not have received a

term exceeding one year of imprisonment for his prior offenses,

he did not have a qualifying predicate offense for a conviction

under § 922(g)(1).      Therefore, White is legally innocent of the

offense of conviction.

            Accordingly, we reverse the judgment and remand for

further proceedings.      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.

                                                        REVERSED AND REMANDED




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