                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5167


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

REGINALD RENARD ROSS,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00483-JAB-1)


Submitted:   September 15, 2011          Decided:   September 28, 2011


Before GREGORY, SHEDD, and WYNN, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Michael F.
Joseph, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               A jury convicted Reginald Renard Ross of possession of

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

§§ 922(g)(1), 924(a)(2) (2006).                   He now appeals the district

court’s       judgment,    challenging       the      denial        of    his       motion   for

judgment       of    acquittal    on   the       ground       that       his    prior      North

Carolina convictions were not felonies inasmuch as they were not

“punishable for a term of imprisonment exceeding one year.”                                  In

light of our recent decision in United States v. Simmons, ___

F.3d ___, 2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en banc), we

reverse Ross’ conviction and remand for further proceedings.

               This appeal turns on § 922(g)(1)’s prohibition of the

possession of a firearm by any person “who has been convicted in

any court of, a crime punishable by imprisonment for a term

exceeding one year.”             18 U.S.C. § 922(g)(1).                   At the time of

Ross’ indictment and conviction, this court determined whether a

prior     conviction       qualified     as       a        felony    for        purposes     of

§ 922(g)(1) by considering “the maximum aggravated sentence that

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

possible criminal history.”              United States v. Harp, 406 F.3d

242,    246    (4th    Cir.   2005).     While         Ross’    appeal          was   pending,

however, Harp was overruled by the en banc decision in Simmons.

See Simmons, 2011 WL 3607266, at *3.                       Simmons held that a prior

North Carolina offense was punishable for a term exceeding one

                                             2
year only if the particular defendant before the court had been

eligible    for    such    a    sentence    under    the    applicable      statutory

scheme, taking into account his criminal history and the nature

of his offense.           Id., at *8; see also N.C. Gen. Stat. § 15A-

1340.17(c)-(d) (2009) (setting forth North Carolina’s structured

sentencing scheme).             We agree with Ross that, on the record

before us, he was not eligible on his North Carolina convictions

to receive a sentence exceeding one year.

            Because Simmons directs the conclusion that Ross was

never convicted of a crime punishable by more than one year of

incarceration, he cannot be convicted as a felon in possession

of a firearm under § 922(g)(1).                 We of course do not fault the

Government    or    the        district    court    for     their    reliance      upon

unambiguous circuit authority at the time of Ross’ indictment

and conviction.           Accordingly, we reverse Ross’ conviction 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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