                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5017


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

CARLOS SCOTT ALBRIGHT,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00006-NCT-1)


Submitted:   September 30, 2011           Decided:   October 7, 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Affirmed in part, vacated in part, and remanded by unpublished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. Michael A. DeFranco, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Carlos Scott Albright pleaded guilty to possession of

a   firearm    after    having    previously     been    convicted     of    a   crime

punishable     by   a   term    of     imprisonment    exceeding     one    year,   in

violation of 18 U.S.C. § 922(g)(1) (2006).                     The district court

sentenced     Albright    to     116    months   of   imprisonment.          Albright

timely appealed, and argues that one of his prior North Carolina

convictions      did    not    qualify      as   a    felony    to   increase       the

applicable base offense level under the advisory Guidelines. *

The parties have also filed a joint motion to remand the appeal

to the district court for resentencing.                   For the reasons that

follow, we affirm Albright’s conviction, but grant the motion,

vacate the sentence, and remand for resentencing.

              We review a sentence for reasonableness, applying an

abuse of discretion standard.               Gall v. United States, 552 U.S.

38, 51 (2007); see also United States v. Layton, 564 F.3d 330,

335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009).                             In so

doing, we first examine the sentence for “significant procedural

error,”       including       “failing      to   calculate       (or       improperly

calculating) the Guidelines range, treating the Guidelines as


      *
       He does not challenge the other felony listed in the
indictment, a prior conviction for being a felon in possession
of a firearm.    Thus, Simmons does not call into question the
validity of the present conviction.



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mandatory,      failing     to        consider        the    [18     U.S.C.]          §     3553(a)

[(2006)]     factors,      selecting             a    sentence       based        on        clearly

erroneous facts, or failing to adequately explain the chosen

sentence.”      Gall, 552 U.S. at 51.

            Under the advisory Guidelines, the base offense level

applicable      to   the   offense          of       conviction      is     twenty          if    the

defendant     committed         the     offense        after       sustaining          a     felony

conviction for a crime of violence or a controlled substance

offense, and twenty-four if the defendant committed the offense

after   sustaining      two     such     convictions.               See    U.S.       Sentencing

Guidelines      Manual     (“USSG”)          §        2K2.1(a)(2),         (4)(A)           (2010).

Relevant to this appeal, USSG § 4B1.2(b) defines a controlled

substance     offense      as     an     offense        punishable          by    a        term     of

imprisonment exceeding one year that prohibits the dispensing or

possession with intent to distribute a controlled substance.

            Here,    Albright         had   prior       North      Carolina       convictions

for possession with intent to deliver marijuana and conspiracy

to commit robbery with a dangerous weapon.                           His conviction for

possession with intent to delivery marijuana is a Class H felony

under   North    Carolina        law.        Moreover,         at    the        time       of     this

conviction,      Albright’s       prior          record      level        was    I,        and    the

sentencing court found that he should be sentenced within the

presumptive range of the applicable sentencing table under N.C.

Gen. Stat. § 15A-1340.17(c) (2007).                         Under North Carolina law,

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Albright faced a maximum term of imprisonment of eight months

for this offense,            see N.C. Gen. Stat. § 15A-1340.17(d) (2007),

and could not therefore have received a term of imprisonment

exceeding twelve months for this prior conviction.

            In United States v. Simmons, 649 F.3d 237 (4th Cir.

2011) (en banc), we determined that an offense is not punishable

by a term exceeding one year of imprisonment if the defendant

could     not     have      actually     received         more       than     one     year    of

imprisonment          for   that   offense,        based       on    his     prior    criminal

history and other factors.               As Albright could not have received

a term exceeding one year of imprisonment for the possession

with intent to deliver marijuana conviction, he had only one

prior conviction that qualified to enhance the applicable base

offense level under the Guidelines.                        See USSG § 2K2.1(a)(2),

(4)(A).         As the advisory Guidelines range was determined based

on   a   base    offense       level    of   twenty-four            rather     than    twenty,

Albright        was     sentenced       based      on     an        incorrect       Guidelines

calculation.                Therefore,       the        sentence        is      procedurally

unreasonable.

            Accordingly,           we    affirm      Albright’s            conviction,       but

grant the motion to remand, vacate the sentence, and remand for

resentencing.          We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials



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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                        AFFIRMED IN PART,
                                                         VACATED IN PART,
                                                             AND REMANDED




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