                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4774


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SHEM BAILEY, a/k/a Christopher Donald,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     Marvin J. Garbis, Senior District
Judge. (1:07-cr-00496-MJG-1)


Submitted:   May 31, 2012                 Decided:   November 9, 2012


Before MOTZ, GREGORY, and DAVIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Marc Gregory Hall, HALL & CHO, P.C., Rockville, Maryland, for
Appellant.     Rod   J.  Rosenstein,  United  States  Attorney,
Christopher M. Mason, Special Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Shem     Bailey       appeals       the        111-month      armed      career

criminal sentence imposed following his guilty plea to being a

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

§ 922(g)(1) (2006).          On appeal, Bailey does not dispute that he

has sustained two convictions that qualify as predicate offenses

under the Armed Career Criminal Act (“ACCA”).                           Bailey contends,

however,     that    the   district       court       erred       in   finding    that     his

conviction for Maryland second-degree assault also qualified as

a   predicate      offense    for    purposes         of    the    ACCA.         We   vacate

Bailey’s     sentence        and    remand       to        the    district       court    for

resentencing.

             Pursuant      to      the    ACCA,       a     person      convicted        under

§ 922(g)(1) who has sustained three or more prior convictions

for violent felonies or serious drug offenses “shall be . . .

imprisoned not less than fifteen years.”                          18 U.S.C. § 924(e)(1)

(2006).      A violent felony is any crime punishable by more than

one   year    of    imprisonment         that    “has      as     an   element    the     use,

attempted use, or threatened use of physical force against the

person of another.”             18 U.S.C. § 924(e)(2)(B)(i) (2006).                         We

review de novo the district court’s conclusion that Bailey’s

prior Maryland second-degree assault conviction was a predicate

violent felony conviction for purposes of the ACCA.                              See United



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States v. Harcum, 587 F.3d 219, 222 (4th Cir. 2009) (providing

standard of review).

              In    determining       that    Bailey’s       Maryland      second-degree

assault conviction qualified as a predicate violent felony under

the   ACCA,    the     district       court       used    the     modified      categorical

approach      and    relied      on   documents          Bailey    contends      were   not

approved by Shepard v. United States, 544 U.S. 13 (2005).                                We

note that the district court did not have the benefit of our

recent decision in United States v. Gomez, 690 F.3d 194, 200

(4th Cir. 2012) (holding that “the modified categorical approach

applies only to those statutory offenses in which the statute

itself is divisible”).            Accordingly, we vacate Bailey’s sentence

and remand to the district court for resentencing in light of

Gomez.

              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




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