                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-4035


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LAMONT CLINTON KING,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville.     David A. Faber,
Senior District Judge. (4:05-cr-00109-FA-1; 4:06-cr-00032-FA-1;
5:07-cr-00009-FA-1)


Submitted:   August 13, 2012                 Decided:   August 23, 2012


Before MOTZ, AGEE, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North
Carolina, for Appellant.      Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Lamont      Clinton      King        appeals       the     conviction      and

sentence       imposed     after     remand.           After      a     trial,    King    was

convicted of one count of possession with intent to distribute a

quantity of cocaine, a quantity of heroin, and a quantity of

marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count One),

two counts of being a felon in possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)(1), 924 (Counts Two and Five),

and one count of using and carrying a firearm during and in

relation to a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i) (Count Three).                    We vacated the conviction and

sentence for Count Five and remanded with instructions that the

district court review the grand jury testimony of Shatiek Bilal

to determine whether the testimony was material and favorable to

King and to take any remedial or other action as required by

its determination.            United States v. King, 628 F.3d 693, 704

(4th Cir. 2011).

               On   remand,    the      district      court,      having       reviewed   the

grand    jury       testimony,     found       nothing      that        was   material    and

favorable to King.            After reinstating the conviction for Count

Five,    the    court      moved   to    resentencing.             King,       offering   new

evidence,       argued      that     one       of     the     predicate          convictions

supporting the Sentencing Guidelines career offender designation

should    not       have   counted      because      he     had    been       adjudicated   a

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juvenile     offender       at   the   time.      King    also    argued       that    the

predicate felony conviction supporting both Counts Two and Five

could no longer be considered a felony under United States v.

Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). *                             Based on

evidence submitted by King, the court found that he was not a

career      offender,       adjusted     his      criminal       history        category

accordingly, and resentenced him to a sentence that was shorter

than the original sentence.

             Having reviewed the relevant grand jury testimony, we

conclude     that    the    district    court     did    not   err     in    finding    it

contained nothing material and favorable for King.                          Accordingly,

the court properly reinstated the conviction for Count Five.

             We further conclude that under Simmons, the predicate

conviction offered in support of Counts Two and Five is not a

felony.     We vacate the convictions and sentences for Counts Two

and Five and remand for resentencing on Counts One and Three.

             Because we are remanding for resentencing, we need not

decide     whether   the     district    court     exceeded      the    scope    of    the

mandate by considering a sentencing issue that had been raised

during the initial sentencing, but abandoned on appeal.                         We note

that resentencing in this case will be de novo and the court, in

its   discretion,          may   consider       sentencing     issues        that     were

      *
          Simmons was decided after the initial appeal.



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previously waived or abandoned.          See Pepper v. United States,

131 S. Ct. 1229, 1251 (2011); United States v. Susi, 674 F.3d

278, 284-85 (4th Cir. 2012).

           Accordingly, we vacate the convictions and sentences

for Counts Two and Five and remand for resentencing on Counts

One and Three.     We affirm the sixty month sentences entered for

the convictions under Case Nos. 4:06-cr-00032-FA-1 and 5:07-cr-

00009-FA-1.     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




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