                              ON REHEARING

                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 07-4881


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHRISTOPHER TERRELL SHORT,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Sr.,
Senior District Judge. (1:07-cr-00084-WLO)


Submitted:   April 12, 2010                  Decided:   October 28, 2011


Before TRAXLER,   Chief   Judge,    and   GREGORY   and   AGEE,   Circuit
Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
North Carolina, for Appellant.  Sandra Jane Hairston, Assistant
United   States  Attorney,  Greensboro,  North   Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Pursuant        to    a     plea   agreement,          Christopher          Terrell

Short pled guilty to possession with intent to distribute 1000.2

grams    of    cocaine        hydrochloride,           in    violation          of   21     U.S.C.

§    841(a)(1)       (2006).        The    district         court    sentenced        him    as   a

career offender to a 190-month term of imprisonment.                                 On appeal,

Short’s counsel filed a brief pursuant to Anders v. California,

386   U.S.     738      (1967),     stating      that       there    were       no   meritorious

issues for appeal but questioning the procedural reasonableness

of Short’s sentence.                Short filed a pro se supplemental brief.

In    our     initial        opinion,      we    affirmed          the     district       court’s

judgment.          We    previously        granted      Short’s      petition         for    panel

rehearing and now affirm the conviction, vacate the sentence,

and remand for resentencing.

              Although neither Short nor his counsel challenges the

adequacy      of     plea     hearing       on   appeal,        we       have    reviewed     the

transcript of the plea hearing for plain error.                                      See United

States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (providing

standard).         Our careful review of the record convinces us that

the district court substantially complied with the mandates of

Fed. R. Crim. P. 11 in accepting Short’s guilty plea and that

any     omission        on   the     court’s         part    did     not     affect       Short’s

substantial rights.                Moreover, the district court ensured that

Short’s guilty plea was knowing and voluntary and supported by a

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sufficient factual basis.                 See United States v. DeFusco, 949

F.2d 114, 116, 119-20 (4th Cir. 1991).

            Short         and   his     counsel          question     the      procedural

reasonableness of Short’s sentence.                      We review a sentence for

reasonableness under an abuse-of-discretion standard.                              Gall v.

United States, 552 U.S. 38, 51 (2007).                         This review requires

appellate consideration of both the procedural and substantive

reasonableness       of     a   sentence.            Id.      This     court      assesses

procedural    reasonableness          by    determining       whether       the   district

court     properly        calculated        the     advisory        Guidelines      range,

considered the factors in 18 U.S.C. § 3553(a) (2006), analyzed

any     arguments    presented         by     the    parties,        and    sufficiently

explained the selected sentence.                    Gall, 552 U.S. at 49-50; see

United    States     v.    Lynn,    592     F.3d     572,    576    (4th    Cir.    2010).

Finally, if there is no significant procedural error, this court

reviews the substantive reasonableness of the sentence.                             United

States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).

            Short         asserts      that        his      prior     North       Carolina

convictions    for        possession       with     intent    to    sell    and    deliver

cocaine were not felonies because he was subject to a maximum

sentence of less than twelve months.                       He therefore argues that

these prior convictions should not have been used to classify

him as a career offender.               Because Short did not advance this

argument in the district court, our review is for plain error.

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See   United    States   v.    Slade,   631    F.3d   185,   189     (4th     Cir.)

(discussing standard), cert. denied, 131 S. Ct. 2943 (2011);

United States v. Knight, 606 F.3d 171, 177-78 (4th Cir. 2010)

(same).

             We initially rejected Short’s challenge to his career

offender    designation       based   upon    our   prior   ruling      in   United

States v. Harp, 406 F.3d 242 (4th Cir. 2005).                 However, in our

recent en banc decision in United States v. Simmons, 649 F.3d

237, 2011 WL 3607266 (4th Cir. Aug. 17, 2011) (No. 08-4475), we

overruled Harp and held that, under North Carolina’s statutory

sentencing     scheme,    a     defendant     is    convicted      of    a    crime

punishable by more than one year only if an offender with the

same prior record level and convicted of similar aggravating

factors could have received a sentence exceeding one year.                      Id.

at *5-*9.      In making this determination, a court must consider

the defendant’s particular “state record of conviction.”                     Id. at

*9.

             The state court judgment of conviction entered against

Short indicates that his prior convictions for possession with

intent to sell and deliver cocaine were classified as Class H

felonies.      In addition, Short had a prior record level of III

and was not charged with any aggravating factors.                    Given these

facts, Short could have been sentenced to a presumptive minimum

term of eight to ten months or a mitigated minimum term of six

                                        4
to eight months.          See N.C. Gen. Stat. § 15A-1340.17(c) (2009).

The state court applied the mitigated range, sentencing Short to

a minimum term of six months and a maximum term of eight months.

See N.C. Gen. Stat. § 15A-1340.17(d) (2009).

                 Applying the Simmons holding here, we conclude that

North Carolina’s statutory sentencing scheme allowed the state

court to impose a maximum possible sentence in the mitigated

range       of   ten   months.    See    N.C.   Gen.    Stat.    § 15A-1340.17(d)

(2009).          Thus, neither of Short’s convictions for possession

with intent to sell and deliver cocaine qualified as a predicate

offense for career offender purposes.                  Because it is now clear

that Short was sentenced improperly as a career offender, 1 we

vacate his sentence and remand for resentencing. 2                     See United

States v. Lewis, 606 F.3d 193, 201 (4th Cir. 2010) (“[This Court

has]        emphasized   that    [a]    sentence   based    on    an   improperly


        1
       The district court, of course, did not have the benefit of
our decision in Simmons at the time it sentenced Short.
        2
       In light of our holding, we need not address Short’s
claims that the prior convictions should have been counted as a
single sentence, that Amendment 709 to the Sentencing Guidelines
applied to his case, and that the district court failed to
adequately explain its reasons for imposing a 190-month career
offender sentence and failed to depart downward on the ground
that the career offender Guidelines range overstated Short’s
criminal history.     To the extent counsel also attempts to
challenge the validity of Short’s January 31, 2001 predicate
offense, he may not do so in this appeal. See Custis v. United
States, 511 U.S. 485, 493-97 (1994).



                                          5
calculated     [G]uidelines    range      will    be   found        unreasonable   and

vacated.”) (internal quotation marks omitted).

            In accordance with Anders, we have reviewed the entire

record for any other meritorious issues and have found none.                        We

therefore affirm Short’s conviction, vacate his sentence, and

remand   for    resentencing.        This      court     requires       that   counsel

inform his client, in writing, of the right to petition the

Supreme Court of the United States for further review.                         If the

client requests that a petition be filed, but counsel believes

that such a petition would be frivolous, then counsel may move

in   this    court   for     leave   to       withdraw       from    representation.

Counsel’s motion must state that a copy thereof was served on

the client.      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.

                                                                    AFFIRMED IN PART,
                                                                     VACATED IN PART,
                                                                         AND REMANDED




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