                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 11-4489


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

NATWOINE AUSTIN,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:10-cr-00099-FDW-1)


Submitted:   September 29, 2011           Decided:   October 4, 2011


Before KING, GREGORY, and DUNCAN, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


Matthew Segal, Federal Defender, Asheville, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Natwoine       Austin       was      convicted              following        his

conditional     guilty     plea    to    possession          of     a    firearm    by     a

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

The     district   court     sentenced        Austin    to        twenty-one       months’

imprisonment.      Austin reserved the right to appeal the district

court’s     determination      that     his     prior    North          Carolina    state

conviction for possession of a schedule I controlled substance

qualified as a felony for the purpose of adjudging him guilty

under § 922(g)(1).         Austin timely appealed.                Prior to submitting

an opening brief, Austin moved to vacate his conviction and to

remand the case to the district court, arguing that his North

Carolina conviction was not punishable by imprisonment for a

term exceeding one year and, thus, that the conviction could not

serve as the necessary predicate for the § 922(g)(1) charge.                             In

light of our decision in United States v. Simmons, 649 F.3d 237,

2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en banc), we reverse

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.                           Austin’s prior

North     Carolina     state      conviction       was        not       punishable        by

imprisonment for a term exceeding one year.                       See N.C. Gen. Stat.

§   15A-1340.17(c)-(d)       (2009)     (setting       out    minimum      and     maximum

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sentences        applicable          under         North    Carolina’s           structured

sentencing scheme).             When Austin 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 Simmons, in which we sustained a similar argument in

favor of the defendant.               In view of our holding in Simmons, we

reverse Austin’s conviction, deny as moot his motion to vacate,

and     remand    the     case       to    the      district       court    for        further

proceedings. *       The      clerk       is   directed      to     issue    the       mandate

forthwith.       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.

                                                                  REVERSED AND REMANDED




      *
       We of course do not fault the Government or the district
court for their reliance upon, and application of, unambiguous
circuit authority at the time of Austin’s indictment and
conviction.



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