                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 10-4557


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

NORMAN ALAN KERR,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:09-cr-00290-NCT-1)


Submitted:   September 13, 2011          Decided:   September 15, 2011


Before AGEE, DAVIS, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Dhamian A. Blue, BLUE STEPHENS & FELLERS LLP, Raleigh, North
Carolina, for Appellant.   Ripley Rand, United States Attorney,
Robert A. J. Lang, Assistant United States Attorney, Winston-
Salem, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Norman Alan Kerr was convicted after a jury trial of

one count of possession of a firearm by a convicted felon, in

violation      of    18     U.S.C.     §§ 922(g)(1),       924(e)       (2006),      and    was

sentenced      to     268      months’       imprisonment.          On        appeal,      Kerr

challenges his sentence, arguing that the district court erred

in denying his March 9, 2010 motion for substitution of counsel

and in sentencing him as an armed career criminal.                                We vacate

and remand for resentencing.

            Although a criminal defendant has a right to counsel

of his own choosing, that right is “not absolute” but is limited

so as not to “deprive courts of the exercise of their inherent

power to control the administration of justice.”                              United States

v.   Gallop,    838       F.2d      105,   107-08   (4th    Cir.    1988).           Thus,    a

defendant’s         right      to    substitute     counsel       after        the    court’s

initial appointment is restricted, and the defendant must show

good   cause    as     to      why   he    should   receive       substitute         counsel.

Id. at 108.          We review for abuse of discretion the district

court’s   ruling          on   a    motion    for   substitute      counsel.            United

States v. Reevey, 364 F.3d 151, 156 (4th Cir. 2004).                                       When

analyzing      the        district     court's      decision       on     a     motion      for

substitution, we consider three factors: “(1) the timeliness of

[the motion]; (2) the adequacy of the court's inquiry into [the

defendant’s]        complaint         about    counsel;     and     (3)       whether      [the

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defendant]      and      his   counsel      experienced          a    total      lack    of

communication preventing an adequate defense.”                             Id. (internal

quotation marks omitted).

            Application        of   these       factors    convinces        us   that   the

district court did not abuse its discretion in denying Kerr’s

motion for substitution.            The motion was timely filed, as it was

made over a month before the then-scheduled sentencing hearing.

See United States v. Mullen, 32 F.3d 891, 896 (4th Cir. 1994)

(finding motion for substitution filed twenty-seven days before

trial timely).          Although the district court inquired into the

basis for Kerr’s motion, we conclude the inquiry was not as

thorough as it should have been because the court never asked

defense   counsel        whether     he   believed        communications         with   his

client had broken down irretrievably or whether he thought he

could continue to represent Kerr adequately.

            However, we conclude that Kerr has not shown that his

attorney was unable to represent him adequately at sentencing.

Kerr   claims      in     conclusory      fashion         that   his       inability     to

communicate     with      counsel     effectively         prevented        communication

concerning    his       history     and   characteristics            and   hampered     the

potential    for      gathering     evidence      and     presenting       witnesses     at

sentencing.     Further, although Kerr claims that counsel objected

to the presentence report’s determination that Kerr was an armed

career criminal without the benefit of a “full and complete”

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consultation with Kerr, he fails to explain what more counsel

should have done or how his interests at sentencing would have

been    served        by     a    more        “full”        or    “complete”         consultation.

Moreover, the record discloses that counsel challenged Kerr’s

designation       as        an        armed        career        criminal      assiduously,           if

unsuccessfully, and argued for a sentence below the Guidelines

range   recommended              in    the    presentence          report.        Kerr        has    not

demonstrated       that          his    counsel          was     unable     to    represent          him

adequately       at    sentencing.                  We    therefore       conclude        that       the

district court did not abuse its discretion in denying Kerr’s

motion for substitution of counsel.

            We turn now to Kerr’s challenge to his designation as

an armed career criminal.                     A defendant is properly designated an

armed career criminal if he is subject to an enhanced sentence

under      the        provisions              of     18        U.S.C.       § 924(e)          (2006).

U.S. Sentencing             Guidelines             Manual        § 4B1.4(a)      (2009).             The

enhanced     sentence            under        18     U.S.C.        § 924(e)      applies        to     a

defendant     who          violates          18    U.S.C.        § 922(g)      and      has    “three

previous    convictions . . . for                    a    violent       felony     or    a    serious

drug offense, or both.”                  18 U.S.C. § 924(e)(1).                  To qualify as a

“violent     felony,”             the    conviction              must     be     “punishable          by

imprisonment          for         a     term         exceeding          one      year.”              Id.

§ 924(e)(2)(B).



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               Kerr   argues        that     none     of    the       prior     convictions        on

which    his    armed    career         criminal       classification            was    based—his

North Carolina state convictions for breaking and entering—was

punishable       by    imprisonment          for      a     term       exceeding       one     year.

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

minimum and maximum sentences applicable under North Carolina’s

sentencing      scheme).            When     Kerr     raised       this    argument          in    the

district    court,       it       was   foreclosed         by    our    decision        in   United

States     v.     Harp,           406    F.3d        242,       246     (4th      Cir.       2005).

Subsequently,         however,          we   overruled          Harp     with     our    en       banc

decision in United States v. Simmons, ___ F.3d ___, No. 08–4475,

2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en banc), in which the

defendant       raised        a    similar       argument          under       the     Controlled

Substances Act.           In light of Simmons, we vacate the district

court’s     judgment          and       remand       to     the        district        court      for

resentencing. *


     *
       Although the parties agree that Kerr’s North Carolina
state convictions for breaking and entering are Class H
offenses, the record on appeal does not disclose Kerr’s prior
record level or whether the state sentencing court made findings
of mitigating or aggravating circumstances.    See Simmons, 2011
WL 3607266, at *5 (stating that, for prior North Carolina
convictions where no aggravating or mitigating circumstances are
present, test is whether defendant could receive more than one
year in prison based upon his offense class and prior record
level). We express no opinion as to whether Kerr’s prior state
convictions qualify as armed career criminal predicates and
leave this determination to the district court on remand.



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               We deny Kerr’s motion to file a pro se supplemental

brief    and    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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