                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5116


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SASAN GHAZAL,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00053-RJC-1)


Submitted:   September 12, 2011          Decided:   September 14, 2011


Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Claire J. Rauscher, Ann Loraine Hester, Rahwa Gebre-Egziabher,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Sasan Ghazal appeals his thirty-three month sentence

for possession of a pipe bomb in violation of 26 U.S.C. §§ 5841,

5861(c), (d), (i), 5871 (2006).              Ghazal argues that his sentence

was procedurally unreasonable because the district court erred

in calculating his Guidelines sentence by finding that he was a

“prohibited person” for purposes of U.S. Sentencing Guidelines

Manual    (“USSG”)      § 2K2.1(a)(4)(B)        (2008).         A   sentence     is

procedurally       unreasonable     if   the     district      court    improperly

calculated       the   offender’s   Guidelines        range    of   imprisonment.

United States v. Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010).

              Ghazal claims that he was not a “prohibited person”

for purposes of USSG § 2K2.1(a)(4)(B) because he had not been

previously convicted of a crime punishable by imprisonment for a

term exceeding a year.            Ghazal’s criminal history disclosed a

2006 North Carolina conviction for possession of ecstasy, but,

under    North     Carolina’s   structured       sentencing      regime,   Ghazal

could not have received a custodial sentence of more than a year

given his criminal history.          When Ghazal raised this argument in

the district court, it 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 United

States   v.    Simmons,    __   F.3d     __,   2011    WL     3607266   (4th   Cir.



                                         2
Aug. 17, 2011) (en banc).       Pursuant to the dictates of Simmons,

we sustain Ghazal’s objection here.

           Accordingly, the district court’s judgment is affirmed

as to the unchallenged conviction, vacated as to the sentence,

and the case is remanded for resentencing.                 We deny Ghazal’s

pending motion to file a supplemental brief.                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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