                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4047


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CEDRIC JULES STANLEY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:08-cr-00235-BR-1)


Submitted:   September 15, 2011           Decided:     October 6, 2011


Before WILKINSON and    GREGORY,   Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Robert H. Hale, Jr., Daniel M. Blau, ROBERT H. HALE, JR. &
ASSOCIATES, Raleigh, North Carolina, for Appellant.     George
E. B. Holding, United States Attorney, Jennifer P. May-Parker,
Kristine L. Fritz, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Following a jury trial in September 2010, Cedric Jules

Stanley was found guilty of possessing firearms after having

been convicted of a crime punishable by more than one year in

prison.        See 18 U.S.C. §§ 922(g)(1), 924 (2006).                              On appeal,

Stanley argues that he lacks the predicate felony conviction

necessary to sustain the guilty verdict.                              Stanley’s argument

hinges    on     his      position     that    this   court’s         decision      in   United

States v. Harp, 406 F.3d 242 (4th Cir. 2005), is no longer good

law.     This case was initially put in abeyance for United States

v.   Simmons,        No.    08-4475,        which   raised      the    same    legal     issue.

Upon    the     issuance         of    Simmons,     this     case      was     removed     from

abeyance and is now ripe.                      For the reasons that follow, we

vacate the criminal judgment, reverse Stanley’s conviction, and

remand this case to the district court for further proceedings.

               Because        Stanley       stipulated     at    trial    that      he   had   a

prior felony conviction, we will review his claim on appeal for

plain error.           To establish plain error, Stanley must show: (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).                 If the three elements of the plain error

standard       are     met,    we     will   exercise      our   discretion         to   notice

error     only       if    the      error     “seriously        affects       the    fairness,



                                                2
integrity or public reputation of judicial proceedings.”                     Id.

(internal quotation marks and alteration omitted).

            We first consider whether there is Simmons error in

this case.        Pursuant to 18 U.S.C. § 922(g)(1), it is unlawful

for an individual who has been convicted of “a crime punishable

by imprisonment for a term exceeding one year” to possess a

firearm    that    has    moved   in   or   otherwise    affected   interstate

commerce.       Stanley had two prior North Carolina convictions that

qualified as a predicate felony conviction under Harp. 1                   Under

North    Carolina’s      structured    sentencing   scheme,   see   N.C.     Gen.

Stat. § 15A-1340.17(c)-(d) (2009), the maximum sentence Stanley

could    have    received   for   either    of   these   convictions   was   ten

months’ imprisonment, given his prior record levels. 2                 Stanley

thus advances that neither conviction qualifies as a “felony”




     1
       First, in 1996, Stanley pled guilty in Wayne County
Superior Court to being an accessory after the fact to common
law robbery.    Stanley received a sentence of eight to ten
months’ imprisonment, suspended.    Next, in 1997, Stanley pled
guilty to possession of cocaine and was again sentenced in the
Wayne County Superior Court, this time to three to four months’
imprisonment, suspended.       In accord with then-controlling
circuit precedent, the probation officer designated both of
these convictions as felonies.
     2
       Stanley submitted copies of his North Carolina judgments
of conviction in conjunction with his appeal. We take judicial
notice of those judgments.   See Lolavar v. de Santibanes, 430
F.3d 221, 224 & n.2 (4th Cir. 2005) (taking judicial notice of
state court records).



                                        3
because       neither    was    punishable          by     more      than       one    year

imprisonment.

              At the time Stanley initially raised this argument, it

was foreclosed by Harp.          In Simmons, the majority of the en banc

panel of this court decided that Harp had been overruled by the

Supreme Court’s opinion in Carachuri-Rosendo v. Holder, 130 S.

Ct 2577 (2010).         See Simmons, 649 F.3d 237, 2011 WL 3607266, at

*3, *6-*8 (4th Cir. Aug. 17, 2011) (en banc).                               In light of

Simmons,      we   conclude    that   Stanley       does    not   have      a    predicate

felony conviction necessary to support his § 922(g) conviction.

              Further, the change in the law exacted by Simmons is

sufficient to demonstrate “error” that is “plain.”                          See Johnson

v. United States, 520 U.S. 461, 467-68 (1997) (“[I]n a case such

as this — where the law at the time of trial was settled and

clearly contrary to the law at the time of appeal — it is enough

that     an    error     be     ‘plain’       at     the      time     of        appellate

consideration.”).             This    error        also    substantially           affects

Stanley’s      rights    because,     under        the     Simmons     analysis,        his

possession      of   firearms    no   longer       violates    federal          law.   See

Olano, 507 U.S. at 734 (explaining that for an error to be said

to have affected a defendant’s substantial rights, “[i]t must

have affected the outcome of the district court proceedings”).

Finally, we elect to exercise our discretion to recognize this

error.     See id. at 736 (“The court of appeals should no doubt

                                          4
correct a plain forfeited error that causes the conviction or

sentencing of an actually innocent defendant.”).

           For these reasons, we vacate the criminal judgment,

reverse   Stanley’s   conviction,   and    remand   this   case   to   the

district court for further proceedings. 3       The Clerk is directed

to issue the mandate forthwith.         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




     3
       We of course do not fault the Government or the district
court for their reliance upon, and application of, unambiguous
circuit authority at the time of Stanley’s indictment and
conviction.



                                    5
