                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 15-4208


UNITED STATES OF AMERICA,

                  Plaintiff – Appellant,

             v.

TAUREAN RAHSAAN DAVIS,

                  Defendant - Appellee.



                              No. 15-4237


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

TAUREAN RAHSAAN DAVIS,

                  Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:14-cr-00107-BR-1)


Submitted:    January 29, 2016              Decided:   February 4, 2016

                       Amended: February 4, 2016
Before NIEMEYER   and   MOTZ,   Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


No. 15-4208 vacated and remanded;         No.   15-4237   dismissed    by
unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Chief Appellate Attorney, Jennifer Dominguez, Assistant Federal
Public Defender, Raleigh, North Carolina, for Appellant.
Thomas G.   Walker,   United   States  Attorney,   Jennifer  P.
May-Parker, Erin C. Blondel, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

        Taurean Rashaan Davis pleaded guilty to possession of a

firearm    by     a    felon,   in     violation        of    18    U.S.C.     § 922(g)(1)

(2012).         The district court sentenced Davis to 51 months of

imprisonment.          The Government appealed from the judgment and

Davis    filed     a   cross-appeal      of       the   sentence,      challenging        the

application of an enhancement under the Sentencing Guidelines

for possession of the firearm in connection with another felony

offense.        For the reasons that follow, we vacate 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.    2009).         In   reviewing    the      district         court’s    calculations

under    the     Guidelines,     “we    review      the      district      court’s      legal

conclusions de novo and its factual findings for clear error.”

United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010)

(internal quotation marks omitted).                     We will “find clear error

only if, on the entire evidence, we are left with the definite

and firm conviction that a mistake has been committed.”                                Id. at

631 (internal quotation marks and alteration omitted).

        Under    the    Sentencing      Guidelines,          the    base     offense    level

applicable to a violation of § 922(g) is 20 if the defendant has

previously sustained a prior conviction for a felony controlled

                                              3
substance       offense.          U.S.      Sentencing          Guidelines         Manual

§ 2K2.1(a)(4)(A)        (2012).       The          Guidelines        define    a   felony

controlled substance offense in part as an offense punishable by

imprisonment for a term exceeding one year that prohibits the

possession of a controlled substance with intent to distribute.

See    USSG    §§ 2K2.1    cmt.   n.1,     4B1.2(b).            In    calculating      the

advisory Guidelines range, the district court determined that

Davis’ 2012 North Carolina conviction for possession with intent

to    deliver   marijuana    was     not       a    felony   controlled         substance

offense, and declined to apply a base offense level of 20.                              On

appeal, the Government argues this conclusion was error.

       Under    North     Carolina       law,       the   presumptive          range    of

imprisonment for Davis’ prior offense was 6 to 17 months of

imprisonment, and he was sentenced to that range.                             Under North

Carolina’s Justice Reinvestment Act of 2011, however, Davis was

required to be released onto post-release supervision 9 months

before the expiration of the 17-month maximum sentence.                                The

district court determined that because Davis had to be released

after serving only eight months of incarceration, that offense

was not punishable by a term exceeding one year of imprisonment.

       In United States v. Barlow, No. 15-4114, 2015 WL 9269972

(4th Cir. Dec. 21, 2015), we reached a different conclusion.                            In

Barlow, we held that the term of post-release supervision is

part of the term of imprisonment.                   Id. at *2-*5.        Therefore, we

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conclude that based on our decision in Barlow, the district

court erred in determining that Davis’ prior conviction was not

a felony controlled substance offense.

      Accordingly,       on    the   Government’s        appeal,      we   vacate    the

sentence and remand for resentencing.                        As the district court

will have to calculate the Guidelines range in accordance with

our decision, we decline to consider the argument raised in

Davis’    cross-appeal          challenging         a        different     Guidelines

calculation      at     this    time.          We   therefore        dismiss      Davis’

cross-appeal without prejudice to his raising that issue should

the   district        court    apply     the    challenged          enhancement     upon

resentencing.*

      We dispense with oral argument because the facts and legal

contentions   are      adequately       presented       in    the   materials     before

this court and argument would not aid in the decisional process.



                                              No. 15-4208 VACATED AND REMANDED
                                                         No. 15-4237 DISMISSED




      *
       As we decline to consider this issue, we express no
opinion regarding the propriety of application of the Guidelines
enhancement.



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