                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4823


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHNNIE O’NEIL LEWIS,

                Defendant -   Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:09-cr-00368-F-1)


Submitted:   September 29, 2011             Decided:   October 20, 2011


Before SHEDD, DAVIS, and DIAZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.    George E. B. Holding, United States Attorney,
Jennifer P. May-Parker, Kristine L. Fritz, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Johnnie        O’Neil        Lewis          pled     guilty          to        unlawful

possession       of     a     firearm       by     a     convicted           felon,      18     U.S.C.

§ 922(g)(1) (2006), and was sentenced to a term of 120 months of

imprisonment.          Lewis appeals his sentence, contending that the

district court erred in (1) failing to explain its award of

recency    points,          U.S.     Sentencing        Guidelines            Manual      § 4A1.1(e)

(2009), and (2) finding that he qualified for base offense level

24     under     USSG         § 2K2.1(a)(2)             because         of      two       predicate

convictions,         one     of     which    was       a    2008     North       Carolina          drug

trafficking      conviction.            In       light     of     our    recent       decision       in

United States v. Simmons, 649 F.3d 237, 2011 WL 3607266 (4th

Cir. Aug. 17, 2011) (en banc), we agree with Lewis that the 2008

drug    trafficking          conviction          does       not    qualify          as    a    felony

conviction.          Accordingly, we vacate the sentence and remand for

resentencing.

               At sentencing, the district court awarded two criminal

history    points           under    USSG        § 4A1.1(e)        for       recency,         as   the

Guidelines       then        required,       and       declined         to    vary       below     the

Guidelines range in anticipation of the 2010 amendment that was

expected       to,    and     later     did,       eliminate        recency         points.         In

response to Lewis’ recency objection, the court clarified that

the    amendment       had     not    yet    passed         and    would       go     into     effect

provided       Congress        approved       it.           The    court        then      expressly

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overruled Lewis’ objection.             After reviewing the record, we find

that the district court did not err in its application of the

recency Guidelines        and       adequately   considered       Lewis’    argument.

See Rita v. United States, 551 U.S. 338, 357–58 (2007) (ruling

that a sentencing court must address any nonfrivolous argument

for imposing a different sentence).

             At sentencing, Lewis also objected to the base offense

level   of     24   on   the    ground    that   his     2008     drug    trafficking

conviction did not expose him to a sentence of more than one

year of imprisonment.               See § 2K2.1 cmt. n.1 (defining felony

conviction).         Lewis     maintained      that    the   base    offense       level

should be 20, pursuant to § 2K2.1(a)(4).                      The district court

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

overruled      Lewis’    objection,       and    sentenced        him     within     his

Guidelines range to a term of 120 months imprisonment.                       Harp has

since   been    overruled      by    Simmons,    which    held    that,    under     the

North Carolina structured sentencing scheme, see N.C. Gen. Stat.

§ 15A-1340.17(c)-(d)           (2009),     the       evaluation     of     whether     a

particular conviction was a felony must focus on the maximum

sentence for which a particular defendant was eligible, based on

his own 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    __,    2011   WL   3607266,     at    *6.



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Judged by this standard, Lewis’ 2008 conviction does not qualify

as a felony.    Resentencing is thus required.

           We   therefore     affirm   Lewis’    conviction,       vacate   his

sentence, and remand for resentencing consistent with Simmons.

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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