                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4375


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JEFFREY WINSTON LEWIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (7:09-cr-00088-BO-1)


Submitted:   November 30, 2011            Decided:   December 15, 2011


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


Stephen Clayton Gordon, Assistant Federal Public Defender,
Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:

            Jeffrey       Winston       Lewis      entered      a    conditional       guilty

plea to being a felon in possession of a firearm, in violation

of 18 U.S.C. § 922(g)(1) (2006).                     Lewis reserved his right to

appeal    the    issue    of   whether       his     prior     state      convictions     for

possession       with     intent    to       manufacture,           sell,    and    deliver

marijuana, in violation of N.C. Gen. Stat. § 90-95(a)(1) (2009),

and maintaining a dwelling for the purposes of using controlled

substances,       in    violation       of   N.C.       Gen.     Stat.      § 90-108(a)(7)

(2009), were punishable by more than one year of imprisonment

and therefore constituted predicate felonies for the § 922(g)

conviction.        On consideration of Lewis’s unopposed motion to

vacate his federal conviction, we reverse.

            The        judgments    for        the      state       court    convictions,

included in the record below in support of Lewis’s motion to

dismiss    the    indictment,       reveal         that      Lewis     faced    a   maximum

possible sentence of ten months for each of his prior North

Carolina    convictions.           At    the     time     that      the   district      court

accepted Lewis’s guilty plea, our decision in United States v.

Harp, 406 F.3d 242, 246 (4th Cir. 2005), dictated that a court,

when determining whether a prior conviction could be considered

as a felony, should “consider the maximum aggravated sentence

that could be imposed for that crime upon a defendant with the

worst     possible       criminal       history.”            Harp      has     since    been

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overturned by our decision in United States v. Simmons, 649 F.3d

237 (4th Cir. 2011) (en banc).                       Simmons holds that a North

Carolina offense may not be classified as a felony based upon

the maximum aggravated sentence that could be imposed upon a

repeat      offender       if   the    defendant     before      the    court    was   not

actually eligible for such a sentence.                     Id. at 241-46.         Because

Lewis was not subject to a sentence exceeding one year for these

predicate       convictions,          and    therefore     had     no    prior     felony

convictions, the conduct that formed the basis for his federal

conviction, possessing a firearm, did not violate § 922(g)(1).

Accordingly,          we   reverse      Lewis’s      conviction        and    remand   for

further proceedings. *

               We deny Lewis’s motion to vacate as moot.                        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




       *
       We of course do not fault the Government or the district
court for reliance on, and application of, unambiguous circuit
authority at the time of Lewis’s indictment and conviction.



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