                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4755


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

EDWARD JORGE GARDNER,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:08-cr-00177-NCT-1)


Submitted:   September 29, 2011           Decided:   October 12, 2011


Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.


Affirmed in part, vacated in part and remanded by unpublished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


George E. Crump, III, Rockingham, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Robert A. J. Lang,
Assistant United States Attorney, Winston-Salem, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Edward Jorge Gardner pled guilty pursuant to a written

plea agreement to possession of a firearm by a convicted felon,

in violation of 18 U.S.C. § 922(g)(1) (2006), and was sentenced

to 360 months’ imprisonment.                 At sentencing, Gardner’s counsel

objected to Gardner’s designation as an armed career criminal

under 18 U.S.C. § 924(e) (2006).                  Counsel asserted that some of

Gardner’s        prior     convictions       could       not    count       as     predicate

felonies because, under the North Carolina structured sentencing

scheme, Gardner could not have received a sentence in excess of

one year based on his prior record level.                             Gardner conceded

below     that      this       argument   was     foreclosed          by    this     court’s

then-authoritative decision in United States v. Harp, 406 F.3d

242     (4th    Cir.     2005),     but     he    argued       that    Harp       should    be

overruled.

               On   appeal,       Gardner     again      challenges         the     district

court’s conclusion that he had four previous violent felonies.

Section 924(e) subjects a violator of section 922(g) to enhanced

penalties if he has “three previous convictions by any court

. . . for a violent felony or a serious drug offense, or both.”

18 U.S.C. § 924(e)(1).              One of the statutory requirements for a

“violent felony” is that it be “punishable by imprisonment for a

term    exceeding        one    year.”      18    U.S.C.       § 924(e)(2)(B).             When

Gardner    raised        this    argument    in    the     district        court,    it    was

                                             2
foreclosed by Harp.              406 F.3d at 246 (holding that “to determine

whether a conviction is for a crime punishable by a prison term

exceeding         one    year”    the    court     should   consider       “the    maximum

aggravated sentence that could be imposed for that crime upon a

defendant with the worst possible criminal history” and not the

maximum sentence that could be imposed on the actual defendant

being sentenced).           Subsequently, however, we overruled Harp with

our en banc decision in United States v. Simmons, 649 F.3d 237

(4th       Cir.    2011)    (en     banc)    (holding       that       consideration     of

hypothetical            aggravating      factors      and    criminal       history      is

inappropriate            when     determining        whether       a     prior     offense

constitutes         a      felony).          Our     Simmons       decision       requires

reconsideration of Gardner’s sentence.

              We    affirm       Gardner’s       conviction,   which       he     does   not

challenge on appeal, but we vacate his sentence and remand for

resentencing in light of Simmons.1                    Because we cannot determine

from the current record whether, in light of Simmons, some or

all    of    Gardner’s       prior      convictions    would       constitute      violent

felonies under § 924(e), we express no opinion on that issue and




       1
       We of course do not fault the Government or the district
court for application of unambiguous circuit authority at the
time of Gardner’s initial sentencing.


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leave that determination for the district court on remand.2                We

decline    to   address   Gardner’s   remaining   claims   on    appeal,   as

their     resolution   may   be   rendered   unnecessary    by    Gardner’s

resentencing.     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 in the decisional

process.


                                          AFFIRMED IN PART,
                                          VACATED IN PART, AND REMANDED




    2
       On resentencing, the district court should also consider
whether Gardner has the requisite predicate felony convictions
needed to calculate his base offense level under U.S. Sentencing
Guidelines Manual § 2K2.1(a)(2).


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