                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4697


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES DAVID RAKEEM HARTSFIELD,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
Chief District Judge. (5:10-cr-00312-FL-1)


Submitted:   November 8, 2011             Decided:   November 15, 2011


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


Reversed and remanded by unpublished per curiam opinion.


G. Alan DuBois, Assistant Federal Public Defender, Raleigh,
North Carolina, for Appellant.       Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            James   David   Rakeem       Hartsfield   entered      a   conditional

guilty plea to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g) (2006).               Hartsfield reserved his

right to appeal the issue whether his prior state conviction,

for possession of cocaine in violation of N.C. Gen. Stat. § 90-

95(a)(3)    (2009),   was     punishable      by   more    than    one       year   of

imprisonment and therefore a predicate felony for the § 922(g)

conviction.      On consideration of Hartsfield’s unopposed motion

to vacate his federal conviction, we reverse.

            The judgment for the state court conviction, included

in the record below in support of Hartsfield’s motion to dismiss

the indictment, reveals that Hartsfield faced a maximum possible

sentence of ten months for his cocaine conviction under North

Carolina law.       At the time that the district court accepted

Hartsfield’s guilty plea, our decision in United States v. Harp,

406 F.3d 242, 246 (4th Cir. 2005), dictated that a court, when

determining whether a prior conviction could be considered as a

felony, should “consider the maximum aggravated sentence that

could be imposed for that crime upon a defendant with the worst

possible criminal history.”          Harp has since been overturned by

our decision in United States v. Simmons, 649 F.3d 237 (4th Cir.

2011) (en banc).      Simmons holds that a North Carolina offense

may   not   be   classified    as    a    felony   based    upon       the    maximum

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aggravated sentence that could be imposed upon a repeat offender

if the defendant before the court was not actually eligible for

such a sentence.           Id. at 241-46.         Because Hartsfield was not

subject to a sentence exceeding one year, his state conviction

was not a felony conviction, and therefore, the conduct that

formed       the   basis   for    his   federal       conviction,     possessing    a

firearm, did not violate § 922(g).

               Accordingly,      we   reverse   Hartsfield’s         conviction   and

remand for further proceedings. ∗             We deny Hartsfield’s motion to

vacate as moot.            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




        ∗
       We of course do not fault the district court for its
reliance upon, and application of, unambiguous circuit authority
at the time of Hartsfield’s conviction.




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