                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4244


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SOPHIA OLYMPIA DUNLAP,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00428-WO-1)


Submitted:   September 29, 2011           Decided:   October 26, 2011


Before DUNCAN, AGEE, and WYNN, 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Affirmed in part, vacated in part, and remanded by unpublished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.   Randall Stuart Galyon, OFFICE OF THE
UNITED   STATES  ATTORNEY,   Greensboro,  North  Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Sophia Olympia Dunlap appeals her conviction and 151-

month sentence imposed after she pled guilty to distributing

46.2   grams    of       cocaine     base,      in     violation     of    21     U.S.C.

§ 841(a)(1) (2006).          Counsel filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), certifying that there

are no meritorious issues for appeal but asking us to review the

reasonableness      of    Dunlap’s    sentence.          Dunlap    filed    a    pro   se

supplemental brief arguing that she was erroneously sentenced as

a career offender and that she should be resentenced in light of

the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220,

124 Stat. 2372.           Following our decision in United States v.

Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), Dunlap filed an

unopposed motion to remand the case for resentencing.                       We affirm

in part, vacate in part, and remand for further proceedings.

            Based    on    her     prior   North     Carolina      convictions,        the

district court sentenced Dunlap as a career offender.                           However,

it is now clear that her convictions were not punishable by

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

§ 15A-1340.17(c)-(d)         (2009)        (setting       minimum     and        maximum

sentences      applicable          under       North     Carolina’s        structured




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sentencing scheme). 1       When Dunlap argued in the district court

that her convictions could not serve as predicate offenses for

the   purposes     of    career       offender      status,   the    argument      was

foreclosed by our decision in United States v. Harp, 406 F.3d

242 (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    grant       the   motion    to    remand,   vacate

Dunlap’s sentence, and remand for further proceedings. 2

            In accordance with Anders, we have reviewed the entire

record in this case and have found no other meritorious issues.

Accordingly, we affirm Dunlap’s conviction, vacate her sentence,

and remand for resentencing in light of Simmons.

            This   court    requires      that      counsel   inform    Dunlap,     in

writing,   of    the    right    to    petition     the   Supreme    Court    of   the

United States for further review.                   If Dunlap requests that a

petition be filed, but counsel believes that such a petition

      1
       The statute was subsequently amended, but the amendments
do not affect Dunlap’s appeal.
      2
       Dunlap, however, is not entitled to relief on the basis of
the FSA, which we recently held does not apply retroactively to
defendants, like Dunlap, who were sentenced before its August 3,
2010 effective date.    United States v. Bullard, 645 F.3d 237,
248 (4th Cir. 2011), cert. denied, __ U.S.__, 2011 WL 4536465
(U.S. Oct. 3, 2011) (No. 09-5214).     We leave for the district
court to determine in the first instance whether the FSA should
be applied to Dunlap upon resentencing.



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would be frivolous, then counsel may move in this court for

leave to withdraw from representation.            Counsel’s motion must

state that a copy thereof was served on Dunlap.

            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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