                            ON REHEARING

                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 06-4764


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KEVIN CARTER,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.    Robert J. Conrad,
Jr., Chief District Judge. (3:05-cr-00082-1)


Submitted:   February 29, 2012              Decided:   March 13, 2012


Before GREGORY, SHEDD, and DAVIS, Circuit Judges.


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unpublished per curiam opinion.


Charles   Robinson  Brewer,   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Unpublished opinions are not binding precedent in this circuit.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:

              In 2006, Kevin Carter was found guilty by a federal

jury     of   possession         with   intent      to    distribute       cocaine      in

violation of 21 U.S.C. § 841(a)(1) (2006) and possession of a

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

(2006).       Based on his previous North Carolina convictions, the

district court designated Carter a career offender under U.S.

Sentencing Guidelines Manual § 4B1.1 (2005).                         The court imposed

within-Guidelines concurrent sentences of 262 and 120 months’

imprisonment, respectively.              Carter appealed and we affirmed the

district      court’s     judgment.       United       States    v.    Carter,    250   F.

App’x 543 (4th Cir. 2007) (per curiam) (unpublished).

              Although     our    mandate       originally      issued   in   2007,     we

recently recalled the mandate with the consent of both parties.

Carter    now      petitions     for    panel    and     en   banc    rehearing    based

primarily on our decision in United States v. Simmons, 649 F.3d

237 (4th Cir. 2011) (en banc).                     Carter contends that, under

Simmons,      he    has   no   prior    felony     convictions.          Thus,    Carter

asserts that his conviction for felon in possession of a firearm

should be vacated.             Moreover, Carter contends that he is not a

career offender for purposes of calculating his Guidelines range

for the cocaine distribution offense.

              Under North Carolina’s structured sentencing scheme,

sentences are calculated based on offenders’ criminal history

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and    whether      they    fall    within       the    mitigated,           presumptive,       or

aggravated sentencing range.                 N.C. Gen. Stat. § 15A-1340.17(c)-

(d) (2009).         To determine whether a North Carolina offense is a

“crime    punishable        by     imprisonment         for    a    term       exceeding       one

year,” we focus on the maximum sentence for which the particular

defendant was eligible in light of his criminal history, rather

than the maximum sentence that could be imposed on a defendant

with the worst possible criminal record.                           Simmons, 649 F.3d at

243.     Simmons overruled our prior decision in United States v.

Harp, 406 F.3d 242 (4th Cir. 2005), in which we determined the

term   for    which    an    offense       was    punishable            by   looking      at   the

maximum      aggravated       sentence       that       could       be       imposed   upon      a

defendant with the worst possible criminal history.                                    Simmons,

649 F.3d at 241.           Harp was in effect at the time of the district

court’s 2006 judgment and our 2007 opinion.

              Carter       first    raised        the    argument            that   his    North

Carolina     convictions         were   not       felonies         in    his    petition       for

rehearing.         Although we generally do not consider issues raised

for the first time in a petition for rehearing, we find that the

intervening change in the law wrought by Simmons warrants our

consideration of that issue on rehearing.                           See United States v.

Pierce,      409    F.3d    228,     235    (4th        Cir.    2005)         (remanding       for

resentencing in light of Booker where Booker issue was raised

for the first time in a petition for rehearing); see also United

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States v. Byers, 740 F.2d 1104, 1115 n.11 (D.C. Cir. 1984) (en

banc).       We therefore turn to an application of Simmons.

               Although the state court records are not part of the

record before us, the indictment, 21 U.S.C. § 851 (2006) notice,

and presentence investigation report set forth three prior North

Carolina        cocaine-related            convictions          as        Carter’s       prior

“felonies.”          However, based on the sentences actually imposed,

under the North Carolina sentencing table it appears that Carter

could not have received a sentence of greater than twelve months

for    any    of    his   prior     convictions.             N.C.    Gen.      Stat.    § 15A-

1340.17(c)-(d).           Thus,      under    Simmons,         none       of    these    three

convictions were offenses punishable by a term of imprisonment

exceeding      one    year    for    the    purpose      of    the    federal        felon-in-

possession         statute.         Similarly,         the    convictions        could     not

support Carter’s designation as a career offender.

               Accordingly, we reverse Carter’s felon in possession

of a firearm conviction.                   For the reasons set forth in our

October       12,     2007     opinion,           we    affirm        Carter’s         cocaine

distribution conviction, but grant panel rehearing and vacate

his sentence for that offense and remand to the district court

for resentencing.            Because no member of the court has requested

a poll, Carter’s request for en banc rehearing is denied.                                   We

deny   as     moot    Carter’s      motions       to   vacate       and   for    a    briefing

order.        We dispense with oral argument because the facts and

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legal    contentions   are   adequately   presented     in   the    materials

before   the   court   and   argument   would   not   aid    the   decisional

process.

                                                         AFFIRMED IN PART,
                                                         REVERSED IN PART,
                                                      VACATED AND REMANDED




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