                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4355


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

TYRELL BELLAMY, a/k/a Clifton Tyrell Evans, a/k/a Psycho,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (7:08-cr-00042-FL-1)


Argued:   October 28, 2010                 Decided:   November 22, 2011


Before MOTZ, AGEE, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


ARGUED: Josiah John Corrigan, James Stockton Perry, PERRY, PERRY
& PERRY, Kinston, North Carolina, for Appellant.     Kristine L.
Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: George E. B. Holding, United
States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Tyrell       Bellamy          appeals         his        235-month         sentence

following     his     guilty        plea    to   one       count       of   possession      of   a

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

§§ 922(g)(1), 924(a)(2) (2006).                      On appeal, Bellamy argues that

the district court erred in sentencing him as an armed career

criminal because his prior North Carolina state conviction for

eluding arrest with a motor vehicle, in violation of N.C. Gen.

Stat. § 20-141.5 (2009), was not a violent felony.                                 We conclude

that resentencing is warranted in light of our recent decision

in   United      States    v.       Simmons,      649      F.3d    237      (4th   Cir.     2011)

(en banc).       Accordingly, we affirm Bellamy’s conviction, vacate

his sentence, and remand for resentencing.

              The Armed Career Criminal Act’s (“ACCA”) provision for

an enhanced sentence — a statutory range of fifteen years to

life in prison — is applicable to a defendant who violates 18

U.S.C. § 922(g) and has “three previous convictions . . . for a

violent     felony        or    a     serious        drug     offense.”             18     U.S.C.

§ 924(e)(1).          A “violent felony” is an offense punishable by

imprisonment       for    a    term    exceeding        one       year      that   “has    as    an

element the use, attempted use, or threatened use of physical

force against the person of another,” or “is burglary, arson, or

extortion,       involves       use   of     explosives,          or     otherwise       involves



                                                 2
conduct     that    presents    a    serious          potential    risk    of    physical

injury to another.”          18 U.S.C. § 924(e)(2)(B)(i)-(ii).

             Bellamy argues that his prior state conviction was not

punishable     by    imprisonment       for       a    term   exceeding      one     year.

See N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting forth

minimum     and     maximum     sentences         applicable       under     the     North

Carolina Structured Sentencing Act).                    Bellamy, however, did not

raise this argument in the district court.                          Accordingly, our

review is for plain error.             United States v. Hargrove, 625 F.3d

170, 184 (4th Cir. 2010), cert. denied, ___ S. Ct. ___, 2011 WL

4536007 (Oct. 3, 2011).             To establish plain error, Bellamy must

demonstrate that (1) there was error; (2) the error was plain;

and   (3)   the     error    affected    his      substantial       rights.        United

States v. Olano, 507 U.S. 725, 732 (1993).                            Even if Bellamy

makes   this      showing,    however,       we       exercise    our     discretion     to

correct plain error only if it “seriously affects the fairness,

integrity or public reputation of judicial proceedings.”                           United

States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010) (internal

quotation    marks     omitted).        We     conclude       after     review     of    the

record that Bellamy has met his burden to establish plain error.

             Bellamy’s prior state conviction is a Class H felony

under North Carolina law.            Although the record does not contain

a copy of Bellamy’s state judgment, it appears after review of

the   presentence      report    that    the      district        court    adopted      that

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Bellamy’s prior state record level was Level III.                             N.C. Gen.

Stat.    §§ 14-87,        15A-1340.14(a),        (b)(2),    (c)(3),      (d)     (2009).

Under the North Carolina Structured Sentencing Act, with a prior

record in Level III, Bellamy could only have been imprisoned for

a term exceeding one year for his conviction for eluding arrest

with a motor vehicle if he received a sentence in the aggravated

range.      N.C.    Gen.       Stat.    § 15A-1340.17(c)-(d).             The   present

record does not include a copy of the state court judgment for

this conviction, and does not otherwise indicate that Bellamy

received an aggravated sentence.                 Therefore, because it appears

that the conviction was not a proper predicate conviction for

purposes of the ACCA, the district court erred by sentencing

Bellamy as an armed career criminal. 1

            We     also    hold    that    the    district       court’s      error   was

“plain.”     For     purposes      of    plain    error    review,      “‘[p]lain’     is

synonymous with ‘clear’ or, equivalently, ‘obvious.’”                            Olano,

507 U.S. at 734.           “An error is plain where the law at the time

of trial was settled and clearly contrary to the law at the time

of   appeal.”        United       States    v.    Hughes,    401       F.3d    540,   547

(4th Cir.    2005)        (internal      quotation    marks       omitted).           When

Bellamy    objected       to    his     classification      as    an    armed    career

     1
       This determination, of course, implies no criticism of the
experienced    district     judge,    who    dutifully    applied
then-authoritative Circuit precedent at Bellamy’s sentencing.



                                            4
criminal    in    the    district     court,    any      objection   based      on    his

sentence exposure for his prior state offense was foreclosed by

this court’s decision in United States v. Harp, 406 F.3d 242,

246 (4th Cir. 2005).            Because Simmons has now overruled Harp,

however,    we    find   that   the    district         court’s   error   was   plain.

Simmons, 649 F.3d at 241 (“[W]e now conclude that Harp no longer

remains good law.”).

            The error also affected Bellamy’s substantial rights.

Had Bellamy not been classified as an armed career criminal, the

statutory maximum for his § 922(g) conviction would have been

ten years, slightly more than half the length of the 235-month

sentence actually imposed.

            Because      Bellamy     received       a   longer    sentence     than    he

could have received were it not for his classification as an

armed    career   criminal,     we    find     it   appropriate      to   notice      the

district    court’s      sentencing     error.           Accordingly,     we    vacate

Bellamy’s sentence and remand for resentencing under Simmons. 2




     2
       In light of our disposition, we need not address Bellamy’s
arguments that his prior state conviction does not “otherwise
involve[] conduct that presents a serious potential risk of
physical injury to another.”



                                         5
Bellamy   does   not   challenge   his   conviction   on    appeal,   and   we

therefore affirm it.

                                                           AFFIRMED IN PART,
                                                            VACATED IN PART,
                                                                AND REMANDED




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