                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-5150


UNITED STATES OF AMERICA,

                Plaintiff - Appellant,

           v.

REGINALD TYRONE COZART,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:11-cr-00087-BO-1)


Argued:   September 20, 2012             Decided:   October 31, 2012


Before NIEMEYER and KEENAN, Circuit Judges, and Michael F.
URBANSKI, United States District Judge for the Western District
of Virginia, sitting by designation.


Vacated and remanded with instructions by unpublished opinion.
Judge Keenan wrote the opinion, in which Judge Niemeyer and
Judge Urbanski joined.


ARGUED: Jennifer P. May-Parker, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellant.       Renorda
Eulissa Pryor, HERRING AND ASSOCIATES, Raleigh, North Carolina,
for Appellee.    ON BRIEF: Thomas G. Walker, United States
Attorney, Evan Rikhye, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellant.
Unpublished opinions are not binding precedent in this circuit.




                               2
BARBARA MILANO KEENAN, Circuit Judge:

     In     this    appeal,    the     government      challenges     the    district

court’s order dismissing an indictment against Reginald Cozart

after finding him guilty of the offense charged, namely, the

unlawful     possession       of   a   firearm    by     a    convicted    felon,   in

violation of 18 U.S.C. §§ 922(g)(1) and 924.                    The district court

held that because Cozart was sentenced to a term of imprisonment

of   less    than    one   year        on   the   predicate      state     conviction

underlying the federal firearm charge, his conviction on the

federal firearm charge was invalid under this Court’s decision

in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en

banc).      Upon our review, we conclude that the district court

misapplied our decision in Simmons.                Accordingly, we vacate the

district     court’s    order      dismissing      the       indictment,    reinstate

Cozart’s conviction, and remand the case to the district court

for further proceedings.



                                            I.

     In July 2011, Cozart entered a guilty plea to a charge of

possession of a firearm by a convicted felon, in violation of 18

U.S.C. §§ 922(g)(1) and 924.                Those statutes, in relevant part,

prohibit anyone who has been convicted by any court of a “crime

punishable by imprisonment for a term exceeding one year” from



                                            3
possessing a firearm or ammunition.                    18 U.S.C. § 922(g)(1). 1        The

predicate conviction identified by the government to support the

federal    firearm      charge    was    Cozart’s        earlier   conviction       under

North Carolina law as an accessory after the fact to discharging

a firearm into an occupied property (the state conviction).

        The district court held a sentencing hearing in October

2011, in which the court determined that Cozart should receive a

sentence of 15 months’ imprisonment followed by a three-year

period of supervised release.                 However, the district court did

not enter a final order imposing sentence at that time.

     Two weeks after the sentencing hearing, the district court

conducted an additional hearing to determine whether Cozart’s

conviction could stand in light of this Court’s en banc decision

in Simmons, decided six weeks after Cozart entered his guilty

plea.     The district court observed that Cozart had received a

sentence    of    10    to   12    months’         imprisonment         for   the   state

conviction,      even    though    the    statutory          “presumptive     range”    of

imprisonment for that offense for an individual with Cozart’s

“prior     record      level”     was    10       to    13    months’     imprisonment.

Interpreting our decision in Simmons, the district court stated

that “only when a defendant has been punished by a term of

imprisonment exceeding one year should his prior conviction be

     1
       18 U.S.C. § 924 provides, among other things, a maximum
term of 10 years’ imprisonment for a violation of § 922(g).


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considered by a federal court in determining predicate offense

conduct.”    (Emphasis in original.)

     Applying this construction of Simmons, the district court

held that “because Mr. Cozart was not actually punished by a

sentence in excess of one year, he cannot, for the purposes of

federal     sentencing       or    indictment,         be      found    to       have     been

convicted of a prior felony.                 Mr. Cozart is therefore legally

innocent     of    his   offense        of       conviction      under       §     922(g).”

(Emphasis in original.)             The district court accordingly vacated

Cozart’s     conviction       and     dismissed           the    indictment.              The

government timely filed a notice of appeal.



                                         II.

     In considering the issue of law before us, we apply an

established       standard    of     review.         We     evaluate     de       novo    the

district     court’s     order        vacating         Cozart’s        conviction         and

dismissing the indictment.             See United States v. Pettiford, 612

F.3d 270, 275 (4th Cir. 2010) (reviewing de novo legal issues

underlying    district        court’s        vacatur      of    conviction);            United

States v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009) (reviewing

district court’s dismissal of indictment de novo when dismissal

was based on a conclusion of law).

     In     Simmons,     we       analyzed       a   federal      statute         requiring

application of a sentencing enhancement when a defendant had

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been convicted of a prior drug-related offense “punishable by

imprisonment for more than one year.”                   649 F.3d at 239 (citing

21 U.S.C. §§ 802(44), 841(b)(1)(B)(vii)).                       In construing this

statutory language, we held that federal courts, in determining

whether   a    prior     conviction    was         “punishable”    by    a     term    of

imprisonment     greater    than    one       year,    should    not    look    to    the

maximum sentence that the state court could have imposed for a

hypothetical defendant who was guilty of an aggravated offense

or had a substantial prior criminal record.                     Id. at 243-47.         We

directed that, instead, federal courts must examine the maximum

sentence that the state court could have imposed on a person

with   that    particular    defendant’s           actual   criminal    history       and

level of aggravation.            Id.; see also United States v. Powell,

691 F.3d 554, 559 (4th Cir. 2012) (summarizing Simmons holding).

       The statutory language at issue in Simmons is substantively

identical to the language of 18 U.S.C. § 922(g)(1) at issue in

this case.     Thus, although Simmons was decided in the context of

a sentencing enhancement statute, rather than the validity of

the federal conviction itself, our holding in Simmons is equally

applicable to the statute at issue here, which requires as an

element   of   the     firearm    offense      a    predicate    conviction      for    a

crime “punishable” by more than one year in prison.                             See 18

U.S.C. § 922(g)(1).



                                          6
          We hold that the district court erred in concluding that

Cozart’s    federal       conviction     was       invalid      under     Simmons.         Our

decision in Simmons addressed a situation in which a defendant

had a predicate conviction for a crime that was punishable by a

maximum    term    of     imprisonment    greater          than    one    year,    but     for

which that particular defendant could not have been sentenced to

imprisonment       exceeding      one    year       for     that     crime      given      the

defendant’s       prior      record     level        and     the        absence    of      any

aggravating factors found by the sentencing court. 2                         We held that

a   conviction      for    such    a    defendant         was     not    “punishable        by

imprisonment for a term exceeding one year,” within the meaning

of 21 U.S.C. §§ 802(44), 841(b)(1)(B)(vii).                         Simmons, 649 F.3d

at 243-45.

      In United States v. Edmonds, 679 F.3d 169, 176-77 (4th Cir.

2012),     issued       after     the   district           court     vacated       Cozart’s

conviction,       we    emphasized      that       Simmons        does    not     direct     a

district court to restrict its consideration to the sentence

that a defendant actually received for a predicate conviction in

determining       the   extent    of    his       potential       punishment      for    that


      2
        As described in Simmons, an individual defendant’s
sentencing range under the North Carolina Structured Sentencing
Act is determined based on a combination of three factors: 1)
classification of the offense; 2) the defendant’s prior record
level; and 3) the presence or absence of aggravating or
mitigating factors. See N.C. Gen. Stat. § 15A-1340.17; Simmons,
649 F.3d at 240.


                                              7
offense.        The     defendant       in     Edmonds         had   received       an    enhanced

sentence under 21 U.S.C. § 841(b)(1)(A) and U.S.S.G § 4B1.1(a),

based    on    two    prior   drug       convictions           that    the     district         court

found were each punishable by a term of imprisonment exceeding

one   year.       679      F.3d    at    176.           For    one     of    these     two      prior

convictions, Edmonds had been subject to a maximum sentencing

range of up to 14 months’ imprisonment, although he actually was

sentenced to serve a term of 9 to 11 months’ imprisonment.

      We      rejected      Edmonds’          argument          that    this        prior      state

conviction could not be used to enhance his federal sentence on

the ground that he did not actually receive a sentence exceeding

one year of imprisonment.                 We explained that under our holding

in Simmons, “the qualification of a prior conviction does not

depend on the sentence [a defendant] actually received but on

the   maximum        sentence      that       he       could    have        received      for     his

conviction.”         Edmonds, 679 F.3d at 176.                   Thus, we concluded that

because       Edmonds      could    have       received         a     term     of    14     months’

imprisonment         for   that     offense,            the    offense        qualified         as   a

predicate conviction for sentencing enhancement purposes.                                         Id.

at 176-77.

      The reasoning applied by the district court in the present

case was contrary to our holding in Simmons, as further applied

by our holding in Edmonds.                    Cozart’s state conviction and prior

record     level      rendered          him     eligible         to     receive          for    that

                                                   8
conviction a term of imprisonment of up to 13 months.                                  Thus,

Cozart’s actual sentence of 10 to 12 months’ imprisonment was

not determinative of the issue whether he had been convicted of

a crime “punishable by imprisonment for a term exceeding one

year.”      See 18 U.S.C. § 922(g)(1).                Cozart had been convicted of

a   crime     that   was    “punishable          by     imprisonment     for       a     term

exceeding one year,” because he could have been sentenced for

that     prior   conviction       to     a       term    of   up   to        13    months’

imprisonment.        Accordingly, Cozart’s prior record qualified him

for conviction under 18 U.S.C. § 922(g)(1).

       For these reasons, we vacate the district court’s judgment,

and remand the case to the district court for reinstatement of

the indictment and conviction, and for entry of final judgment

imposing     sentence      on   Cozart   for      his     violation     of    18       U.S.C.

§§ 922(g)(1) and 924.

                                   VACATED AND REMANDED WITH INSTRUCTIONS




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