                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4118


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DESMOND JAMAR SMITH,

                Defendant – Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 09-9611)


Submitted:   September 8, 2011           Decided:   September 27, 2011


Before AGEE and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Desmond          Jamar     Smith         pled    guilty      without       a     plea

agreement to one count of being a felon in possession of a

firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1),

924 (2006), and was sentenced to 210 months in prison.                                         Smith

timely     appealed,           asserting           that       under      United     States          v.

Rodriquez,     553        U.S.    377,    389      (2008)      (cautioning        that       when    a

judgment      of    conviction,           charging        document        or    plea     colloquy

“do[es] not show that the defendant faced the possibility of a

recidivist enhancement,” the Government might be precluded from

establishing            that     the   conviction             is   a     qualifying          offense

triggering         application           of    a       sentencing         enhancement),          the

district court erred when it classified him as an armed career

criminal      under       U.S.     Sentencing          Guidelines        Manual     (“USSG”)         §

4B1.4(b)(3)(B)           (2008),       and      the       Armed        Career   Criminal         Act

(“ACCA”), 18 U.S.C.A. § 924(e) (West 2000 & Supp. 2011), because

it   failed        to     consider       his       particular          criminal     history         in

determining the maximum punishment he faced under state law for

the offenses underlying his ACCA classification.

              We affirmed the district court’s judgment, rejecting,

in relevant part, Smith’s argument as contrary to United States

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

order    to    “determine          whether         a    conviction         is     for    a     crime

punishable by a prison term exceeding one year . . . [the Court]

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consider[s]       the   maximum     aggravated       sentence     that     could      be

imposed for that crime upon a defendant with the worst possible

criminal history”).         See United States v. Smith, 354 F. App’x

830, 832 (4th Cir. 2009) (No. 09-4118) (unpublished).                              Smith

filed a petition for writ of certiorari with the Supreme Court,

and the Supreme Court vacated this court’s order affirming the

criminal    judgment      and   remanded      the    case    to   this    court     for

further consideration in light of Carachuri-Rosendo v. Holder,

130 S. Ct. 2577, 2587 n.12 (2010) (stating that it held in

Rodriquez that “a recidivist finding could set the ‘maximum term

of   imprisonment,’      but    only   when    the    finding     is   part   of    the

record of conviction”) (emphasis added).                     In United States v.

Simmons, ___ F.3d ___, 2011 WL 3607266, *3 (4th Cir. Aug. 17,

2011),     we     considered    the    question       that    Smith      raises     and

concluded that a North Carolina offense may not be classified as

a felony punishable by imprisonment for more than one year under

the Controlled Substances Act based upon the maximum aggravated

sentence that could be imposed upon a repeat offender if the

individual defendant was not eligible for such a sentence.                           We

therefore vacate Smith’s sentence and remand the matter to the

district court for resentencing under Simmons, but reinstate our

previous        order   affirming      Smith’s      conviction     and     rejecting

Smith’s     remaining     assignments         of    error    pertaining       to    his

sentence.

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            Smith did not assert in the district court that his

armed     career    criminal      predicate      convictions             were    improper

because    they    were   not    punishable      by    a    term     of    imprisonment

greater than one year.                Accordingly, we review the appellate

challenge to his armed career criminal classification for plain

error.     See United States v. Hargrove, 625 F.3d 170, 184 (4th

Cir. 2010).        To establish plain error, Smith must demonstrate

that (1) there was error; (2) the error was plain; and (3) the

error affected his substantial rights.                      See United States v.

Olano, 507 U.S. 725, 732 (1993).                  Even if Smith makes this

showing, however, we may exercise our discretion to correct the

error only if it seriously affects the fairness, integrity, or

public reputation of judicial proceedings.                       See United States v.

Lynn, 592 F.3d 572, 577 (4th Cir. 2010).                    Smith has established

plain error.

            First,    although         the   Government          asserts    that    North

Carolina Class H felony convictions like Smith’s prior state

convictions generally carry a maximum possible term of thirty

months’    imprisonment,        the    Government      concedes       that      based   on

Smith’s    prior    state   record       level   and       the    lack     of   statutory

aggravating or mitigating factors, Smith was subject to a state

sentencing range of eight to ten months’ imprisonment for those

convictions.       See N.C. Gen. Stat. § 15A-1340.17(c), (d) (2009).

Thus, it was error for the district court to classify Smith as

                                             4
an armed career criminal based on his prior state convictions

for which he did not face more than one year in prison.                                See

Simmons, 2011 WL 3607266 at *3.

             We    also     hold       that    the   district    court’s     error     was

“plain.”      For    purposes          of   plain    error    review,     “‘[p]lain’    is

synonymous with ‘clear’ or, equivalently, ‘obvious.’”                              Olano,

507 U.S. at 734.          “An error is plain ‘where the law at the time

of trial was settled and clearly contrary to the law at the time

of appeal.’”        United States v. Hughes, 401 F.3d 540, 547 (4th

Cir. 2005) (quoting Johnson v. United States, 520 U.S. 461, 468

(1997)); accord United States v. David, 83 F.3d 638, 645 (4th

Cir. 1996) (holding that an error is plain when “an objection at

trial would have been indefensible because of existing law, but

a    supervening     decision          prior    to   appeal    reverses     that   well-

settled    law”).         When    Smith       objected   to    his   Guidelines     range

calculation in the district court, any objection based on the

length of sentence he faced for his state crimes was foreclosed

by Harp.      Because Simmons has now overruled Harp, however, we

find that the district court’s error was plain.                            See Simmons,

2011 WL 3607266 at *3 (“[W]e now conclude that Harp no longer

remains good law.”).

             The    error    also       affected     Smith’s    substantial       rights.

In   fact,   had    Smith        not    been    classified      as   an   armed    career

criminal, his Guidelines range would have been lower than the

                                               5
one adopted by the district court and if the district court were

to sentence Smith to the top of his non-ACCA Guidelines range

(as it did under the ACCA Guidelines range), Smith’s sentence

would be less than the 210-month sentence he received.                    See USSG

ch. 5, pt. A.

             Because Smith received a longer sentence than he would

have received were it not for his ACCA classification, we notice

the   district       court’s    sentencing     error     and     vacate    Smith’s

sentence     and     remand    for   resentencing      under     Simmons. *     We

nonetheless        reinstate   our     previous   order    affirming       Smith’s

conviction and rejecting Smith’s remaining assignments of error

pertaining    to     his   sentence.     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.

                                                          VACATED AND REMANDED




      *
       We of course do not fault the Government or the district
court for their reliance upon, and application of, unambiguous
circuit authority at the time of Smith’s sentencing.



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