                             ON REHEARING

                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-5084


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MOREY BERNAL CHAMPION,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:08-cr-00381-FL-1)


Submitted:   September 30, 2011          Decided:     October 18, 2011


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


Reversed and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

               Morey Bernal Champion pleaded guilty to possession of

a   firearm     after       having    previously        been      convicted      of    a   crime

punishable       by   a     term    of    imprisonment         exceeding       one    year,   in

violation of 18 U.S.C. § 922(g)(1) (2006), conditioned on his

appeal of the district court’s denial of his motion to dismiss

the    indictment.            The    district         court      sentenced      Champion      to

fifty-one       months      of     imprisonment.            This      court    affirmed       his

conviction on appeal in reliance upon our decision in United

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

States v. Champion, 384 F. App’x 245 (2010) (unpublished).                                     We

subsequently         granted       Champion’s        petition      for   rehearing,        based

upon     the    Supreme       Court’s       decision        in     Carachuri-Rosendo          v.

Holder, 130 S. Ct. 2577 (2010).                      Champion has now filed a motion

to vacate his conviction based on this court’s recent decision

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

banc).         For    the    reasons      that       follow,     we    reverse       Champion’s

conviction.

               Champion’s prior conviction for possession with intent

to deliver marijuana was a Class I felony under North Carolina

law.     Moreover, at the time of his conviction, his prior record

level was I.           Under North Carolina law, the maximum term of

imprisonment for a Class I felony with a record level of I and

no finding by the sentencing court of aggravating or mitigating

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factors is eight months.              See N.C. Gen. Stat. § 15A-1340.17(c),

(d) (2007).       Therefore, Champion could not have received a term

of     imprisonment     exceeding           twelve       months       for    his    prior

conviction.

             In   Simmons,     we     determined     that       an    offense      is   not

punishable by a term exceeding one year of imprisonment if the

defendant could not have actually received more than one year of

imprisonment      for   that    offense,         based    on    his    prior     criminal

history and other factors.                As Champion could not have received

a term exceeding one year of imprisonment for his prior offense,

he did not have a qualifying predicate offense for a conviction

under    §   922(g)(1).        Therefore,        Champion      is     innocent     of   the

offense of conviction.

             Accordingly, we reverse the judgment, deny Champion’s

motion as moot, and remand 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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