                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4018


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HENRY MONTARIOUS SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00160-WO-1)


Submitted:   September 8, 2011           Decided:   September 27, 2011


Before MOTZ, KING, and SHEDD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant.   Ripley Rand, United States Attorney,
Graham T. Green, Assistant United States Attorney, Winston-
Salem, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Henry       Montarious    Smith     was   convicted      following       his

conditional       guilty       plea     to   possession     of    a     firearm    after

conviction      of     a    crime     punishable    by   more    than    one     year    of

imprisonment, in violation of 18 U.S.C. § 922(g)(1) (2006).                             The

district court sentenced Smith to 180 months of imprisonment.

Smith reserved his right to appeal the district court’s denial

of his motion to dismiss the indictment.

               On appeal, Smith argues that his prior North Carolina

state    convictions          for     breaking     and   entering       and     attempted

breaking and entering were not punishable by more than one year

of imprisonment and thus are not predicate convictions pursuant

to 18 U.S.C. § 922(g)(1).               In light of United States v. Simmons,

        F.3d           , 2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en

banc), we vacate and remand.

               Under 18 U.S.C. § 922(g)(1), it is unlawful for any

person convicted of a crime punishable by imprisonment for a

term exceeding one year to possess a firearm.                           Smith’s prior

offenses specified in the § 922(g)(1) charge were punishable by

not more than ten months’ imprisonment.                    See N.C. Gen. Stat. §

15A-1340.17(c)-(d)           (setting     out    minimum   and   maximum       sentences

applicable       under        North     Carolina’s       “structured          sentencing”

regime).       When Smith raised this argument in the district court,

it was foreclosed by our decision in United States v. Harp, 406

                                             2
F.3d 242 (4th Cir. 2005).                  Subsequently, however, we overruled

Harp    with    the   en    banc     decision      in     Simmons,       where    a    similar

argument was presented and sustained in favor of the defendant.

In   view   of    our      holding    in    Simmons,       we    vacate     the       district

court’s     judgment        and      remand       to     the     district        court    for

proceedings consistent with this opinion.

               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.

                                                                  VACATED AND REMANDED




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