                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4647


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RUSHAUN NECKO PARKER, a/k/a Duke,          a/k/a     Rushuan   Nekoe
Parker, a/k/a Rushuan Nikoe Parker,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:10-cr-00011-H-1)


Submitted:   January 27, 2012             Decided:    February 14, 2012


Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Robert W. Waddell, THE WADDELL LAW FIRM PLLC, Greenville, 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Unpublished opinions are not binding precedent in this circuit.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:

              Rushaun Necko Parker was convicted following a jury

trial of conspiracy to possess with intent to distribute fifty

grams    or    more       of    cocaine      base,     in    violation      of     21    U.S.C.

§§ 841(a)(1), 846 (2006); distribution of fifty grams or more of

cocaine base; distribution of more than five grams but less than

fifty     grams         of     cocaine     base;      possession         with     intent    to

distribute fifty grams or more of cocaine base; possession of a

firearm       by    a    convicted       felon,       in    violation       of    18     U.S.C.

§ 922(g)(1) (2006); possession of a firearm in furtherance of a

drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)

(2006);       and       money    laundering,         in     violation       of    18     U.S.C.

§§ 1956(a)(1)(A)(i), (h) (2006).                     Based on findings that Parker

had been convicted of one felony drug offense and one violent

felony,    the      district         court    applied       the    enhanced       punishments

under 21 U.S.C. § 841(b)(1)(A-C), determined that Parker was a

career    offender           under   the     U.S.     Sentencing       Guidelines        Manual

§ 4B1.1 (“USSG”), and sentenced Parker to a total term of 420

months of imprisonment.

              On    appeal       Parker      argues       that    neither    of    the    prior

North Carolina convictions are punishable by imprisonment for a

term exceeding one year, and therefore are not predicates for

the purposes of the § 922(g)(1) conviction, for the purposes of

the   statutory          sentencing      enhancements,            21   U.S.C.     §§ 802(44),

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841,       or    for       the     purposes    of       calculating       his     sentencing

guidelines. 1           USSG § 4B1.2(a).              The United States has filed an

unopposed motion to remand, conceding that Parker’s conviction

for possessing a firearm after a felony conviction is no longer

sustainable, that the statutory penalty enhancements should not

apply, and that Parker is not a career offender.                                We reverse

Parker’s             § 922(g)(1)       conviction,            affirm      the       remaining

convictions, vacate Parker’s sentence and remand.

                 Parker’s § 922(g)(1) conviction and his sentences were

based       on       two    prior     North    Carolina         convictions,        one    for

possession with intent to sell and deliver cocaine and one for

fleeing         to    elude      arrest,   with       two   aggravating    factors        (“the

North Carolina convictions”).                         Parker was charged, convicted,

and sentenced consistent with this court’s decision in United

States v. Harp, 406 F.3d 242, 246-47 (4th Cir. 2005), which

allowed         courts        to   consider       a     hypothetical      North     Carolina

defendant with the worst possible criminal record in determining

whether         the    underlying      crime      was       punishable    by    a   term    of

imprisonment greater than one year.                          Because a North Carolina

       1
       Parker’s conclusory assertion in a footnote of his brief
that the evidence was insufficient to sustain his § 924(c)
conviction does not comply with the rules governing briefing on
appeal. Fed. R. App. P. 28(a)(5), (a)(9)(a). This argument is
therefore not properly before the Court, and will not be
considered. Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6
(4th Cir. 1999).



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court faced with a defendant with the worst possible criminal

history could have imposed a sentence of greater than one year,

Parker’s    prior      convictions      constituted     felonies        under     the

reasoning in Harp.

            This court recently overruled Harp.                United States v.

Simmons, 649 F.3d 237, 241 (4th Cir. 2011) (en banc).                        We held

that, when deciding whether a North Carolina conviction is a

predicate    offense     for    sentencing        enhancement     purposes,       the

Controlled Substance Act’s inclusion of offenses “punishable by

imprisonment     for   more    than    one    year”   refers     to    the   maximum

sentence that the defendant in question could have received, not

the sentence that could have been imposed on a defendant with a

more   severe    criminal      history       or   subject   to    an    aggravated

sentence.    Id. at 243-45.       The reasoning in Simmons applies with

equal force to predicate convictions used to establish mandatory

minimums    at    sentencing,         advisory      Guidelines        ranges,    and

§ 922(g)(1) offenses.          The Government concedes, and the record

supports a conclusion that, under Simmons, Parker’s prior North

Carolina convictions were not punishable by more than one year

of imprisonment.        Parker has no other prior convictions that

were punishable by more than one year of imprisonment.                          Thus,

his conviction as a felon in possession of a firearm is invalid,

as is his sentence as a career offender.



                                         4
           We   therefore   grant   the   Government’s    motion,   reverse

Parker’s    § 922(g)(1)      conviction,      affirm      his   remaining

convictions, vacate his sentence, and remand this case to the

district court for further proceedings. 2        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




     2
       We of course fault neither the Government nor the district
court for relying on, and applying, unambiguous circuit
authority at the time of Parker’s prosecution and sentencing.



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