                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-4402


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CESAR AUGUSTO GOMEZ ALVARADO,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00202-TDS-1)


Submitted:   October 7, 2011                 Decided:   October 20, 2011


Before GREGORY, AGEE, and DAVIS, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Louis C. Allen, III, Federal Public Defender, Mireille P.
Clough, Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant.    Terri-Lei O’Malley, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Cesar Augusto Gomez Alvarado was convicted following

his   guilty     plea       to    illegal        reentry        by   a   previously      removed

felon, in violation of 8 U.S.C. § 1326(a), (b)(1) (2006).                                       At

sentencing, Alvarado challenged whether his prior North Carolina

breaking and entering conviction qualified as a felony crime of

violence,       as     required            for      the        sixteen-level          enhancement

applicable       pursuant             to     U.S.       Sentencing        Guidelines         Manual

§ 2L1.2(b)(1)(A)(ii)              (2010),        because         his     sentence      for    that

conviction      did    not       exceed       twelve      months’        imprisonment.         The

district court denied the objection, relying on United States v.

Harp, 406 F.3d 242, 246 (4th Cir. 2005), and sentenced Alvarado

to eighty months’ imprisonment.                      Alvarado timely appealed.

               In his opening brief, Alvarado reasserted his argument

that his North Carolina breaking and entering conviction was not

punishable by imprisonment for a term exceeding one year and,

thus,    that    the    conviction            could       not    serve    as    the    necessary

predicate for the sixteen-level increase in his base offense

level.      Prior      to    the       completion         of    briefing,       the    Government

moved to remand the case to the district court for resentencing

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

2011) (en banc).             Alvarado joins the Government’s motion.                            We

grant    the    motion      to        remand,       vacate      Alvarado’s      sentence,      and

remand    this       case        to    the     district         court     for    resentencing.

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Further,     we     affirm      Alvarado’s        conviction,        which     is    not

challenged on appeal.

            Alvarado’s         prior    North     Carolina       conviction    was   not

punishable by imprisonment for a term exceeding one year.                            See

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

and   maximum        sentences         applicable        under     North     Carolina’s

structured        sentencing     scheme).          When     Alvarado       raised    this

argument     in    the   district        court,     it    was    foreclosed     by   our

decision in Harp.        Subsequently, however, we overruled Harp with

our en banc decision in Simmons, in which we sustained a similar

argument in favor of the defendant.                      See Simmons, 649 F.3d at

241, 246-47.        In view of our holding in Simmons, we grant the

motion to remand, vacate Alvarado’s sentence, and remand this

case to the district court for resentencing. *                    Further, we affirm

Alvarado’s conviction.            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.

                                                                   AFFIRMED IN PART,
                                                                    VACATED IN PART,
                                                                        AND REMANDED




      *
       We of course do not fault the district court for its
reliance upon, and application of, unambiguous circuit authority
at the time of Alvarado’s sentencing.



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