                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4552


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LEWIS ALSTON,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.    Louise W. Flanagan,
Chief District Judge. (5:09-cr-00095-FL-1)


Submitted:   September 19, 2011          Decided:   September 29, 2011


Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.    George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Rudy E. Renfer, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Lewis Alston pleaded guilty to possession with intent

to distribute five grams or more of crack cocaine, in violation

of 21 U.S.C. § 841(a)(1) (2006), and maintaining a place for the

purpose of distributing and using crack cocaine, in violation of

21 U.S.C. § 856(a)(1) (2006).                The district court determined

that Alston was accountable for 22.28 grams of crack cocaine,

and that his advisory guideline range was 120 to 150 months’

imprisonment.         The    court    sentenced   Alston   to   150   months’

imprisonment.     Alston appeals, arguing that the district court

erred by converting $928 in cash that was found in Alston’s

apartment to its crack cocaine equivalent and adding it to the

13 grams of crack cocaine actually found.              He also argues that

he should not have been subjected to an enhanced sentence under

21 U.S.C. § 851 (2006), because his prior state convictions did

not qualify as felonies.             Finally, he argues that the sentence

imposed was substantively unreasonable.              For the reasons that

follow, we affirm the judgment, vacate the sentence, and remand

for resentencing.

             First, we find no clear error in the district court’s

determination that the money found in Alston’s apartment was

attributable     to    his    drug     trafficking   activities.      United

States v. Kellam, 568 F.3d 125, 147 (4th Cir. 2009) (providing

standard).     The $928 included the $20 that had been used by a

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confidential informant to buy drugs from Alston.                                    Further, the

district      court      noted    that    there       was    evidence          throughout        the

apartment      suggesting        Alston’s       involvement             in    the    drug    trade,

including the 13 grams of crack cocaine, a video surveillance

system       set   up    outside    the    apartment,             and    a    firearm       in   the

closet.       Finally, the district court pointed out that the money

could credibly be linked to drugs because Alston was unemployed

and    had    no   visible       means    of    support.           The       district       court’s

findings       are      not   clearly      erroneous.              See        U.S.       Sentencing

Guidelines Manual § 2D1.1, cmt. n.12 (2007); United States v.

Sampson, 140 F.3d 585, 592 (4th Cir. 1998).

               Alston’s       second     argument,          however,          is     meritorious.

Because Alston did not raise this argument below, we review for

plain error.            United States v. Lynn, 592 F.3d 572, 577-78 (4th

Cir. 2010).          To prevail under the plain error standard, Alston

must show that plain error by the district court affected his

substantial        rights.        Id.     at    577,       580.         The    district       court

applied an enhanced sentence to Alston, pursuant to 21 U.S.C.A.

§§    841(b)(1)(B), 851 (West 1999 & Supp. 2011), because Alston

had two prior state convictions, one for a Class I felony for

which he had a prior record level of I, and one for a Class I

felony with a prior record level of II.                             Alston was sentenced

from   the     presumptive        range    in       both    cases,       and       was    therefore



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subject to a maximum sentence of eight months each time.                               See

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

              At the time of Alston’s sentencing, district courts

were required to follow this court’s determination that whether

a prior conviction qualified as a felony for purposes of § 851

was evaluated by considering “the maximum aggravated sentence

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

worst possible criminal history.”                   United States v. Harp, 406

F.3d   242,    246   (4th       Cir.   2005).        While       Alston’s    appeal   was

pending, however, Harp was overruled by our en banc decision in

United States v. Simmons, ___ F.3d ___, 2011 WL 3607266 (4th

Cir. Aug. 17, 2011) (en banc).                   Simmons held that a prior North

Carolina offense was punishable for a term exceeding one year

only   if   the   particular       defendant        before       the   court   had    been

eligible    for   such     a    sentence     under        the   applicable     statutory

scheme, taking into account his criminal history and the nature

of his offense.           Id., at *8; see also N.C. Gen. Stat. § 15A-

1340.17(c)–(d).         We agree with Alston that, on the record before

us,    he   was   not     eligible      on   either        of    his   North   Carolina

convictions to receive a sentence exceeding one year.

              Because Simmons directs the conclusion that Alston was

not convicted of a felony punishable by more than one year of

incarceration,       he    is    not   subject       to    the    § 851     enhancement.

Because we find that this error affected Alston’s substantial

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rights, we vacate Alston’s sentence and remand the case to the

district court for resentencing. *

            Accordingly, we affirm Alston’s judgment, vacate his

sentence,      and   remand   for   resentencing       in     accordance    with

Simmons.    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




     *
       Because Alston will be resentenced, we need not address
his third issue, as to the reasonableness of his sentence.



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