                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4573


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANJUAN DANGELO TERRY,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:10-cr-00307-NCT-1)


Submitted:   September 29, 2011           Decided:   October 7, 2011


Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Louis C. Allen, III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant.   Robert Albert Jamison Lang, Assistant
United   States  Attorney,   Greensboro,  North   Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Anjuan          Dangelo       Terry       appeals         his    ninety-four-month

sentence following his guilty plea to one count of possession of

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

§§ 922(g)(1), 924(a)(2) (2006).                           On appeal, Terry argues that

the district court erred in calculating his base offense level

under U.S. Sentencing Guidelines Manual (“USSG”) § 2K2.1(a)(2)

(2010) because one of the two prior convictions on which that

Guideline was based — Terry’s North Carolina state conviction

for possession with the intent to sell or deliver cocaine — was

not punishable by imprisonment for a term exceeding one year.

Following the filing of Terry’s opening appellate brief, the

parties       filed       a     joint       motion         to      remand       this       case    for

resentencing in light of United States v. Simmons, 649 F.3d 237,

2011 WL 3607266 (4th Cir. 2011) (en banc).                                    We affirm Terry’s

conviction, vacate his sentence, and remand for resentencing.

              Under USSG § 2K2.1(a)(2), a defendant’s base offense

level    is   twenty-four          if       he    commits         any   part    of       the   subject

offense       “subsequent          to        sustaining            at      least         two    felony

convictions      of       either       a    crime       of      violence       or    a    controlled

substance      offense.”           A       prior    offense         does      not   qualify       as   a

“felony conviction” for purposes of the Guideline unless it is

punishable by “death or imprisonment for a term exceeding one

year.”    USSG § 2K2.1, cmt. n.1.

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               Terry argues that his prior state conviction was not

punishable by more than one year of imprisonment.                                See N.C. Gen.

Stat.   § 15A-1340.17(c)-(d)                (2009)         (setting      forth    minimum       and

maximum sentences applicable under the North Carolina Structured

Sentencing       Act).         When       Terry       raised      this    argument       in     the

district   court,        it    was    foreclosed            by   our    panel     decisions      in

United States v. Simmons, 635 F.3d 140, 146 (4th Cir. 2011)

(holding that, to determine whether a North Carolina conviction

for a crime is punishable by a prison term exceeding one year, a

court is to “consider the maximum aggravated sentence that could

be   imposed     for     that       crime     upon      a    defendant      with    the       worst

possible       criminal        history”        (internal           quotation        marks       and

emphasis omitted)), and United States v. Harp, 406 F.3d 242, 246

(4th    Cir.     2005)    (same).            The      en    banc       decision    in    Simmons

reversed this precedent, holding that a prior North Carolina

offense is punishable by imprisonment for a term exceeding one

year only if the particular defendant is eligible for such a

sentence    under      the      applicable            statutory        scheme,    taking      into

account    his    criminal          history    and      the      nature    of     his   offense.

Simmons, 649 F.3d at ___, 2011 WL 3607266, at *8.

               Applying       the    en     banc      decision     in     Simmons       here,    we

conclude after review of the state judgment that Terry’s prior

North Carolina conviction was not punishable by imprisonment for

a term exceeding one year.                   The offense was a class H felony,

                                                  3
and   the   state      judgment    reveals      a    prior   record   level   of   II.

Under the North Carolina Structured Sentencing Act, Terry could

not have been imprisoned for a term exceeding one year for that

conviction.            N.C.     Gen.    Stat.       § 15A-1340.17(c)-(d).           The

conviction was therefore not a proper predicate conviction for

purposes of USSG § 2K2.1(a)(2).

             Accordingly,         we    grant       the   parties’    joint   motion,

vacate Terry’s sentence, and remand to the district court for

resentencing.           Terry    does    not    challenge       his   conviction    on

appeal,     and   we    therefore      affirm       it.    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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