                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 14-6703


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

BOBBY RAY HUNT,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:09-cr-00034-FL-1; 7:12-cv-00230-FL)


Submitted:   August 7, 2015                Decided:   September 10, 2015


Before SHEDD and AGEE, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Vacated and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Halerie F. Mahan,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker,   Shalika   S.   Kotiya,  Assistant   United  States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Bobby Ray Hunt pleaded guilty to possession of a firearm by

a felon, in violation of 18 U.S.C. § 922(g)(1) (2012).                                   The

district court initially found that Hunt qualified for enhanced

statutory    penalties     under    the      Armed    Career          Criminal    Act,   18

U.S.C.     § 924(c)     (2012)   (“ACCA”),       and    sentenced           him   to     the

statutory     mandatory     minimum     of     180    months          of   imprisonment.

Following    his   unsuccessful       appeal     of    the       ACCA      finding,    Hunt

filed a 28 U.S.C. § 2255 (2012) motion, arguing that the ACCA

enhancement no longer applied following this court’s decision in

United   States    v.    Simmons,   649       F.3d    237    (4th       Cir.   2011)     (en

banc).     The district court concluded that Simmons did not apply

to the ACCA determination and that, in any event, Hunt was still

an armed career criminal following Simmons.                      The court, however,

granted Hunt a certificate of appealability and Hunt appealed.

     While     Hunt’s     appeal      was      pending,          we     decided    United

States v.    Newbold,     ___    F.3d   ___,     2015       WL    3960906      (4th    Cir.

June 30, 2015).         In Newbold, we concluded that Simmons applies

to the determination of whether a prior offense is predicate

under the ACCA and that such a claim may be raised in a § 2255

proceeding.       Id. at *3-*5.         Based on this decision, we vacate

the district court’s order and remand for reconsideration.

     “In     reviewing     the    district       court's         determination         that

[Hunt] is an armed career criminal, we review factual findings

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for   clear    error    and     legal    conclusions       de    novo.”          United

States v.     Davis,    689    F.3d    349,   355   (4th    Cir.       2012).      “The

Government bears the burden of proving by a preponderance of the

evidence that a defendant committed a predicate [serious drug

offense]—the same standard that applies to any other sentencing

factor.”      United States. v. McDowell, 745 F.3d 115, 120 (4th

Cir. 2014), cert. denied, 135 S. Ct. 942 (2015).                           Under the

ACCA, a defendant convicted of violating § 922(g) is subject to

a statutory minimum sentence of 15 years of imprisonment if he

has   sustained    three       prior    convictions        for     either       violent

felonies or serious drug offenses.                  18 U.S.C. § 924(e).              A

serious drug offense is defined, in part, as a state offense

involving manufacturing, distributing, or possessing with intent

to distribute a controlled substance, “for which a maximum term

of imprisonment of ten years or more is prescribed by law.”                          18

U.S.C. § 924(e)(2)(A)(ii).

      In the proceedings below, the district court concluded that

Hunt’s     prior   North       Carolina       convictions        for     burning     an

uninhabited     house    and    1988     convictions       for     two    counts    of

possession with intent to deliver marijuana qualified as ACCA

predicates, and that Hunt’s 1981 convictions for possession with

intent to deliver and delivery of controlled substances did not

so qualify.     Hunt does not challenge these findings.                     The court

also determined that Hunt’s 1987 convictions for possession with

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intent to deliver and delivery of controlled substances were

serious drug offenses under the ACCA, and Hunt argues on appeal

that this finding was error.

     In    Newbold,     we   considered         whether    a    maximum       term   of    10

years of imprisonment was prescribed for Newbold’s 1984 North

Carolina    conviction       for    possession      with       intent    to    deliver      a

controlled substance.          2015 WL 3960906, at *5-*7.                 Based on the

sentencing court’s failure to articulate aggravating factors to

expose Newbold to a sentence above the three-year presumptive

term up to the statutory maximum term of 10 years, and the

failure of the judgment to specify whether the sentencing court

actually imposed a sentence above that three-year presumptive

term, we concluded that there was no evidence in the record to

support    the   conclusion         that    the    offense       of     conviction        was

punishable by 10 years of imprisonment.                    Id.        In light of this

determination,     we    conclude          that   the     district       court       should

reconsider its determinations that Hunt’s 1981 convictions were

not serious drug offenses under the ACCA and that Hunt’s 1987

convictions were serious drug offenses.

     Accordingly,       we     vacate      the    district       court’s       order      and

remand with instructions to reconsider these issues in light of

Newbold.    We dispense with oral argument because the facts and

legal   contentions      are       adequately     presented       in     the    materials



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before this court and argument would not aid in the decisional

process.

                                          VACATED AND REMANDED




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