                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4841


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LARRY JEROME DAVIS, JR., a/k/a Pokey,

                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. (1:09-cr-00021-NCT-1)


Submitted:   September 22, 2011           Decided:   October 11, 2011


Before GREGORY, SHEDD, and DAVIS, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Adam H. Charnes, Richard D. Dietz, Bradley A. Roehrenbeck,
KILPATRICK STOCKTON, LLP, Winston-Salem, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Lisa B.
Boggs, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                 Larry Jerome Davis, Jr., was found guilty after a jury

trial      of    possession       with       intent      to    distribute      11.4     grams    of

crack cocaine.               He received a 292-month sentence.                       On appeal,

Davis argues, as he did below, that the district court should

have       granted       a     downward       variance          based     on   the     disparate

treatment under the Sentencing Guidelines of crack and powder

cocaine, that he should not have been designated as a career

offender, and that his sentence is greater than necessary to

comply      with     18      U.S.C.    § 3553(a)          (2006).         We   affirm    Davis’s

conviction.             However,       in    light       of    this     court’s    decision      in

United States v. Simmons, 649 F.3d 237, 2011 WL 3607266 (4th

Cir. Aug. 17, 2011) (en banc), 1 we vacate the sentence imposed

and remand for resentencing.

                 This court reviews a sentence for reasonableness under

an abuse of discretion standard.                              Gall v. United States, 552

U.S.       38,     51        (2007).           This       review        requires       appellate

consideration             of      both       the         procedural        and       substantive

reasonableness of a sentence.                      Id.     Procedural reasonableness is

determined         by     reviewing         whether      the     district      court    properly

calculated the defendant’s advisory Guidelines range and then

considered         the       18   U.S.C.      §     3553(a)       factors,        analyzed      any

       1
           This case was placed in abeyance for Simmons.



                                                   2
arguments presented by the parties, and sufficiently explained

the selected sentence.          Id. at 49-51.             “Regardless of whether

the district court imposes an above, below, or within-Guidelines

sentence,    it    must     place    on       the   record     an     ‘individualized

assessment’ based on the particular facts of the case before

it.”     United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009).        Finally,       this        court      reviews         the      substantive

reasonableness of the sentence, “examining the totality of the

circumstances to see whether the sentencing court abused its

discretion in concluding that the sentence it chose satisfied

the    standards    set   forth     in    §    3553(a).”            United    States   v.

Mendoza-Mendoza,      597    F.3d    212,        216    (4th    Cir.      2010),    cert.

denied, 131 S. Ct. 3078 (2011).

            Davis challenges the district court’s designation of

him as a career offender on the ground that the court erred in

finding that one of his prior North Carolina convictions for

possession with intent to sell and deliver cocaine counted as a

conviction   with    a    sentence       greater       than   one    year    for   career

offender purposes.          Section 4B1.1 of the Sentencing Guidelines

defines a career offender as a defendant who (1) was at least

eighteen years old when he committed the instant offense, (2) is

convicted of a felony “that is either a crime of violence or a

controlled substance offense,” and (3) “has at least two prior

felony convictions of either a crime of violence or a controlled

                                           3
substance     offense.”       USSG    §   4B1.1(a).          This    court    reviews

de novo the district court’s classification of Davis as a career

offender    and   reviews     for    clear     error   its     factual    findings.

United States v. Farrior, 535 F.3d 210, 223 (4th Cir. 2008).

            Davis claims that his 1998 North Carolina conviction

of possession with the intent to sell or deliver cocaine did not

constitute    a   predicate    felony     because      he    was    sentenced    to   a

maximum of twelve months. 2          When Davis raised this argument in

the district court, it was foreclosed by this court’s decision

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

Subsequently, however, this court overruled Harp with the en

banc decision in Simmons, in which this court determined that

the evaluation of whether a particular offense was a felony must

focus on the maximum sentence for which a particular defendant

was eligible, in light of his criminal history, rather than the

maximum sentence that could be imposed on a defendant with the

worst possible criminal record.               Simmons, 2011 WL 3607266 at *6.

In light of the decision in Simmons, we conclude that Davis’s

argument has merit.         We therefore vacate the district court’s




     2
       Davis’s brief refers to a 1999 conviction; however, the
Pre-Sentence Report and district court relied upon 1998 and 2000
convictions.   We presume that Davis’s argument is based on his
1998 sentence, for which he received a 10-12 month sentence.



                                          4
sentence    and   remand     the   case    to     the    district     court   for

resentencing. 3

            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




     3
       Because we vacate the sentence in its entirety, we do not
express an opinion on whether the district court committed a
procedural error in declining to grant a downward variance based
on the crack to powder cocaine sentencing ratio, nor whether the
original sentence was reasonable.



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