                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5070


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CORNELL BREON RILLEY HARPER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Fox, Senior
District Judge. (4:10-cr-00008-F-1)


Submitted:   September 15, 2011          Decided:   September 30, 2011


Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Reversed and remanded by unpublished per curiam opinion.


Samuel B. Winthrop, WINTHROP AND WINTHROP, Statesville, North
Carolina, for Appellant.     Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Cornell Breon Rilley Harper pled guilty to possession

of a firearm by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1), 924 (2006).                Harper moved to withdraw his guilty

plea    in    light     of    the    Supreme   Court’s         decision       in   Carachuri-

Rosendo v. Holder, __ U.S. __, 130 S. Ct. 2577 (2010), but that

motion was denied.             The district court sentenced Harper to 102

months’ imprisonment.                Harper appealed, arguing that his prior

conviction       was     not    punishable         by      imprisonment        for      a    term

exceeding one year and, thus, could not serve as a predicate

conviction pursuant to 18 U.S.C. § 922(g)(1).                             Harper also moves

to vacate his conviction and remand the case to the district

court.        In light of United States v. Simmons, ___ F.3d ___,

No. 08–4475, 2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en banc),

we reverse.

               Under 18 U.S.C. § 922(g)(1), it is unlawful for any

person convicted of a crime punishable by imprisonment for a

term exceeding one year to possess a firearm.                               Harper’s prior

North        Carolina        state    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 Harper raised this argument in the

district      court,     it    was    foreclosed        by    our    decision      in       United

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

Subsequently,      however,      we    overruled        Harp    with    our     en   banc

decision in Simmons, in which we sustained a similar argument in

favor of the defendant.            In view of our holding in Simmons, we

reverse Harper’s conviction, deny as moot the motion to vacate,

and     remand    the    case     to    the      district       court    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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