                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5243


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JEREMY SCOTT LEMMOND,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00192-RJC-1)


Submitted:   September 13, 2011          Decided:   September 15, 2011


Before AGEE, DAVIS, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Ross H. Richardson,
Assistant Federal Defender, Charlotte, North Carolina, for
Appellant.   Anne M. Tompkins, United States Attorney, Laura L.
Ferris, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Jeremy       Scott    Lemmond         appeals      his   188-month        sentence

following his guilty plea to one count of armed bank robbery, in

violation         of    18     U.S.C.       § 2113(a),        (d)     (2006).         On     appeal,

Lemmond argues that the district court erred in sentencing him

as a career offender under U.S. Sentencing Guidelines Manual

(“USSG”)         § 4B1.1       (2010)        because         neither      of   the     two     prior

convictions        on        which    that       classification        was     based—two       North

Carolina         state       convictions         for    larceny       from     the    person,       in

violation         of         N.C.     Gen.        Stat.       § 14-72(b)(1)           (2009)—were

punishable by imprisonment for a term exceeding one year.                                           We

vacate and remand for resentencing.

                 A defendant is properly designated a career offender

if:   (1)    he        was    at    least    eighteen         years    old     at    the     time   he

committed        the     instant      offense;          (2)   the     instant       offense    is    a

felony crime of violence or controlled substance offense; and

(3) he “has at least two prior felony convictions of either a

crime       of     violence           or     a      controlled         substance           offense.”

USSG § 4B1.1(a).               An offense does not qualify as a “crime of

violence”         or    a     “controlled         substance         offense”        unless    it    is

“punishable        by        imprisonment         for    a    term    exceeding        one    year.”

USSG § 4B1.2(a).

                 Lemmond       argues        that       his    prior      crimes       were     each

punishable by no more than one year of imprisonment.                                       See N.C.

                                                    2
Gen.   Stat.      § 15A-1340.17(c)-(d)                 (2009)       (setting      forth       minimum

and    maximum       sentences             applicable            under     North       Carolina’s

sentencing scheme).                  When Lemmond raised this argument in the

district    court,        it       was    foreclosed        by    our    decision        in    United

States     v.      Harp,           406     F.3d        242,      246     (4th      Cir.        2005).

Subsequently,       however,             we   overruled          Harp     with     our    en     banc

decision in United States v. Simmons, ___ F.3d ___, No. 08-4475,

2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en banc), in which the

defendant        raised        a     similar        argument        under       the    Controlled

Substances Act.            In light of Simmons, we vacate the district

court’s     judgment           and        remand       to     the       district       court      for

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     the   decisional

process.

                                                                         VACATED AND REMANDED


       *
       The Government does not dispute Lemmond’s assertion that
his prior North Carolina state convictions are Class H offenses.
The record on appeal, however, does not disclose Lemmond’s prior
record level or whether the state sentencing court made findings
of mitigating or aggravating circumstances.    See Simmons, 2011
WL 3607266, at *5 (stating that, for prior North Carolina
convictions where no aggravating or mitigating circumstances are
present, test is whether defendant could receive more than one
year in prison based upon his offense class and prior record
level).   We express no opinion as to whether Lemmond’s prior
state convictions qualify as career offender predicates and
leave this determination to the district court on remand.



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