                              ON REHEARING

                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-5062


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MARTA ERWIN PERRY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:09-cr-00106-FL-1)


Submitted:   September 30, 2011              Decided:   October 19, 2011


Before MOTZ and      KING,   Circuit   Judges,   and    HAMILTON,   Senior
Circuit Judge.


Reversed and remanded by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
William M. Gilmore, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Marta Erwin Perry pleaded guilty to possession of a

firearm    after       having       previously         been       convicted      of    a    crime

punishable      by     a   term    of     imprisonment           exceeding      one    year,    in

violation of 18 U.S.C. § 922(g)(1) (2006), conditioned on his

right to appeal the district court’s denial of his motion to

dismiss the indictment.                 The district court sentenced Perry to

eighty-four months of imprisonment.                              This court affirmed his

conviction on appeal in reliance upon our decision in United

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

States v.      Perry,      384     F.    App’x       249    (2010)     (unpublished).           We

subsequently granted Perry’s petition for rehearing, based upon

the Supreme Court’s decision in Carachuri-Rosendo v. Holder, 130

S. Ct. 2577 (2010).               Perry has now filed a motion to vacate his

conviction      based       on    this     court’s          recent     decision       in   United

States v. Simmons, 2011 WL 3607266 (Aug. 17, 2011) (en banc).

For the reasons that follow, we reverse Perry’s conviction.

               Perry’s      prior       convictions         consisted      of   Class       I   and

Class H felonies under North Carolina law.                                Moreover, at the

time of his convictions, Perry’s prior record level was never

above a level II.           Under North Carolina law, the maximum term of

imprisonment for a Class H felony with a record level of II is

twelve months, and the maximum term for a Class I felony is ten

months.          See       N.C.     Gen.     Stat.          §     15A-1340.17(d)           (2007).

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Therefore, Perry could not have received a term of imprisonment

exceeding twelve months for his prior convictions.

              In    Simmons,     we     determined      that    an    offense      is   not

punishable by a term exceeding one year of imprisonment if the

defendant could not have actually received more than one year of

imprisonment        for   that    offense,       based   on     his    prior    criminal

history and other factors.               As Perry could not have received a

term exceeding one year of imprisonment for his prior offenses,

he did not have a qualifying predicate offense for a conviction

under § 922(g)(1).           Therefore, Perry is innocent of the offense

of conviction.

              Accordingly,        we    reverse   the    judgment,       deny      Perry’s

motion to vacate as moot, and remand 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




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