                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4950


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KERON TIMOTHY MCHUGH,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00405-TDS-1)


Submitted:   December 16, 2011            Decided:     December 20, 2011


Before MOTZ, KING, and DAVIS, Circuit Judges.


Vacated, reversed   in   part,   and   remanded   by    unpublished   per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


Seth Allen Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North
Carolina, for Appellant.    Clifton Thomas Barrett, Assistant
United   States Attorney,  Greensboro,  North  Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Keron Timothy McHugh pled guilty to four counts of

being a felon in possession of a firearm in violation of 18

U.S.C.    §§ 922(g)(1),        924    (2006),          distribution      of     cocaine,    in

violation of 21 U.S.C. § 841(a)(1) (2006), and carrying and use

of a firearm during and in relation to a drug trafficking crime,

in     violation    of    18     U.S.C.         § 924(c)(1)(A)(1)         (2006).          The

§ 922(g) charges were supported by McHugh’s prior North Carolina

convictions for larceny of a firearm and breaking and entering a

motor vehicle.          On account of his prior record, McHugh faced a

maximum    possible      sentence         of    less    than    one    year     under   North

Carolina law for his predicate state offenses.                          McHugh appealed,

and has filed an unopposed motion to vacate and remand, arguing

that     his    prior    state       convictions         were     not    “punishable        by

imprisonment for a term exceeding one year.”

               We recently held that, when deciding whether a North

Carolina       conviction      is     a    predicate       offense       for     sentencing

enhancement purposes, the Controlled Substance Act’s inclusion

of offenses “punishable by imprisonment for more than one year”

refers to the maximum sentence that the defendant in question

could    have    received,      not       the    sentence       that    could    have   been

imposed on a defendant with a more severe criminal history or

one    subject     to    an    aggravated           sentence.          United    States     v.

Simmons, 649 F.3d 237, 241 (4th Cir. 2011) (en banc).                                      The

                                                2
reasoning      in     Simmons    applies          with    equal     force       to    predicate

convictions as defined in 18 U.S.C. § 922(g)(1).                            See Carachuri-

Rosendo     v.        Holder,        130     S.     Ct.      2577,        2586-87        (2010)

(distinguishing        between       “conduct       punishable       as     a    felony”      and

conviction       of    a    felony       offense);       Simmons,     649       F.3d    at    247

(concluding that the North Carolina Structured Sentencing Act

“creates separate offenses that in turn yield separate maximum

punishments”).               Thus,       because         McHugh’s     underlying            state

convictions were not punishable by a term exceeding one year,

McHugh’s     conduct         that        formed     the     basis     for       his     federal

conviction — possessing a firearm — did not violate § 922(g).

            Accordingly,            we     grant    McHugh’s        motion,      vacate       the

district court’s judgment, reverse McHugh’s § 922(g) convictions

and   remand     for       further       proceedings.        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.

                                                                                VACATED,
                                                                       REVERSED IN PART,
                                                                            AND REMANDED




                                               3
