                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4955


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

STEPHON MONTRELL HOOKER,

                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-00361-FL-1)


Submitted:   September 15, 2011          Decided:   September 30, 2011


Before NIEMEYER, AGEE, and DIAZ, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Lauren H. Brennan, Research
and Writing Specialist, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Seth M. Wood, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Stephon      Montrell    Hooker          was     convicted        following          his

conditional     guilty       plea    to        possession        of     a     firearm       by     a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924

(2006).      The district court sentenced Hooker to eighty-seven

months’ imprisonment.           Hooker reserved the right to appeal the

district    court’s      determination             that    his    prior      North    Carolina

state   convictions       for   embezzlement              and    obtaining         property       by

false     pretenses      qualified        as       felonies       for       the    purpose        of

adjudging    him    guilty      under      § 922(g)(1).               On     appeal,    Hooker

argues that neither of these two convictions was punishable by

imprisonment       for   a   term    exceeding            one    year       and,    thus,        the

convictions were not predicate convictions pursuant to 18 U.S.C.

§ 922(g)(1).        Hooker also moves to vacate his conviction and

remand the case to the district court.                             In light of United

States v. Simmons, ___ F.3d ___, No. 08–4475, 2011 WL 3607266

(4th Cir. Aug. 17, 2011) (en banc), we reverse and remand.

            Under 18 U.S.C. § 922(g)(1), it is unlawful for any

person convicted of a crime punishable by imprisonment for a

term    exceeding     one    year   to     possess          a    firearm.          Neither        of

Hooker’s prior North Carolina state convictions was punishable

by imprisonment for a term exceeding one year.                                See N.C. Gen.

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

maximum sentences applicable under North Carolina’s structured

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sentencing scheme).              When Hooker raised this argument in the

district    court,      it    was    foreclosed       by    our    decision      in    United

States     v.    Harp,        406     F.3d         242,    246     (4th     Cir.       2005).

Subsequently,      however,         we    overruled        Harp    with    our     en    banc

decision in Simmons, in which we sustained a similar argument in

favor of the defendant.               In view of our holding in Simmons, we

reverse Hooker’s conviction, deny as moot his motion to vacate,

and     remand    the    case        to    the      district       court    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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