                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4108


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TIRAN CHEVAR FARRIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (4:09-cr-00063-BO-1)


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


Before NIEMEYER and     GREGORY,   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Reversed and remanded by unpublished per curiam opinion.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, Raleigh, North Carolina, for
Appellant.   George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Tiran Chevar Farris pled guilty to possession of a

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

§§ 922(g)(1),        924   (2006),       and       was       sentenced      to    110    months’

imprisonment.        Farris, however, reserved the right to appeal the

district court’s denial of his motion to dismiss the felon-in-

possession charge on the ground that neither of his prior North

Carolina    convictions      was     a    felony         inasmuch      as    they       were   not

“punishable for a term of imprisonment exceeding one year.”                                    In

light of our recent decision in United States v. Simmons, ___

F.3d ___, 2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en banc), we

reverse Farris’ conviction and remand for further proceedings.

            This appeal turns on § 922(g)(1)’s prohibition of the

possession of a firearm by any person “who has been convicted in

any court of, a crime punishable by imprisonment for a term

exceeding one year.”          18 U.S.C. § 922(g)(1).                        At the time of

Farris’ indictment and conviction, this court determined whether

a   prior   conviction       qualified         as        a    felony     for      purposes     of

§ 922(g)(1) by considering “the maximum aggravated sentence that

could be imposed for that crime upon a defendant with the worst

possible criminal history.”                United States v. Harp, 406 F.3d

242, 246 (4th Cir. 2005).                 While Farris’ appeal was pending,

however, Harp was overruled by the en banc decision in Simmons.

See Simmons, 2011 WL 3607266, at *3.                         Simmons held that a prior

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North Carolina offense was punishable for a term exceeding one

year only if the particular defendant before the court had been

eligible    for    such    a    sentence    under    the    applicable      statutory

scheme, taking into account his criminal history and the nature

of his offense.           Id. at *8; see also N.C. Gen. Stat. § 15A-

1340.17(c)-(d) (2009) (setting forth North Carolina’s structured

sentencing scheme).             We agree with Farris that, on the record

before us, he was not eligible on his North Carolina convictions

to receive a sentence exceeding one year.

            Because Simmons directs the conclusion that Farris was

never convicted of a crime punishable by more than one year of

incarceration, he cannot be convicted as a felon in possession

of a firearm under § 922(g)(1).                 We of course do not fault the

Government    or    the        district    court    for     their    reliance      upon

unambiguous circuit authority at the time of Farris’ indictment

and conviction.       Accordingly, we reverse Farris’ conviction 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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