                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-5139


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TYRAN MATRICE BRACE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:09-cr-00136-MR-1)


Submitted:   September 22, 2011          Decided:     September 30, 2011


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


Reversed and remanded by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Ann L. Hester, Angela G.
Parrott, Assistant Federal Defenders, Erin K. Taylor, Research
and Writing Attorney, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Tyran     Matrice      Brace       pled    guilty        to    possessing        a

firearm after having been convicted of a crime punishable by

imprisonment for a term exceeding one year in violation of 18

U.S.C. § 922(g)(1) (2006), reserving his right to appeal the

issue of whether his prior conviction was punishable by more

than one year of imprisonment.                   The offense in question was a

prior conviction for conspiracy to commit breaking and entering,

pursuant to which a defendant with a criminal record similar to

Brace’s faced a maximum possible sentence of ten months under

North Carolina law.

              Brace appealed, arguing that his prior conviction was

not “punishable by imprisonment for a term exceeding one year”

under   the    Supreme       Court’s     decision        in    Carrachuri-Rosendo             v.

Holder, 130 S. Ct. 2577 (2010).                    We recently held that, when

deciding    whether      a   North     Carolina         conviction      is        a    predicate

offense    for    sentencing       enhancement           purposes,          the       Controlled

Substance        Act’s       inclusion       of         offenses        “punishable           by

imprisonment      for    more     than   one      year”       refers    to        the    maximum

sentence that the defendant in question could have received, not

the sentence that could have been imposed on a defendant with a

more severe criminal history or one subject to an aggravated

sentence.      United States v. Simmons, No. 08-4475, ___ F.3d ___,

2011 WL 3607266, at *3 (4th Cir. Aug. 17, 2011) (en banc).                                  The

                                             2
reasoning        in    Simmons    applies        with    equal    force    to    predicate

convictions as defined in 18 U.S.C. § 922(g)(1).                          See Carachuri-

Rosendo, 130 S. Ct. at 2586-87 (distinguishing between “conduct

punishable as a felony” and conviction of a felony offense);

Simmons,        2011   WL   3607266,        at    *8    (concluding     that    the   North

Carolina        Structured      Sentencing        Act   “creates      separate    offenses

that       in   turn    yield     separate        maximum     punishments”).          Thus,

because Brace’s underlying conviction was not punishable by a

term exceeding one year, Brace’s conduct — possessing a firearm

— did not violate § 922(g).

                Accordingly,          we    reverse       Brace’s      conviction       and

sentence and remand for further proceedings. *                         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




       *
        This disposition conveys no criticism of either the
Government or the district court, both of which dutifully
applied circuit precedent at the time of Brace’s prosecution and
sentencing that was then authoritative but that was later
reversed by Simmons.   See United States v. Harp, 406 F.3d 242
(4th Cir. 2005).



                                                 3
