                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4717


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ERNEST ELI COOK, III,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:10-cr-00433-CCE-1)


Submitted:   November 22, 2011            Decided:   December 7, 2011


Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Louis C. Allen, III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant.   Anand P. Ramaswamy, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Ernest Eli Cook, III, appeals from his conviction and

sentence of 204 months’ imprisonment for possession of a firearm

by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)

(2006).     On appeal, Cook challenges the district court’s denial

of his motion to suppress, claims that his conviction exceeds

Congress’s authority under the Commerce Clause, and asserts that

he was wrongly sentenced as an armed career criminal.

              Also pending before us is a joint motion to vacate

Cook’s sentence and remand for further proceedings in light of

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

banc).      The parties contend that Cook’s three North Carolina

convictions     for       breaking      and    entering          into    a     residence,      in

violation of N.C. Gen. Stat. § 14-54(a) (2009), are not properly

considered felonies under 18 U.S.C. § 924(e)(1) (2006), and,

therefore,      that       Cook      should        not     have         been     subject       to

§ 924(e)(1)’s fifteen-year mandatory minimum or classification

as an armed career criminal.                  For the reasons set forth below,

we   affirm    the     district        court’s      denial       of     Cook’s      motion     to

suppress,     affirm       his    conviction,        grant       the     joint      motion     to

vacate his sentence, and remand for resentencing.

              First, we find that the district court did not err in

denying    Cook’s     motion      to    suppress      because         the     search      of   his

outgoing    mail     by    jail    officials         did    not       violate       the   Fourth

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Amendment.          We      have     held      that       a    prison     official         may

constitutionally         conduct     a   warrantless          search     of    an   inmate’s

outgoing mail so long as the search is “reasonably related to

legitimate penological interests.”                    Altizer v. Deeds, 191 F.3d

540, 547 (4th Cir. 1999) (internal quotation marks omitted).                                As

the U.S. Supreme Court has often observed, the investigation and

prevention     of    ongoing       illegal        inmate       activity       furthers     the

legitimate penological objectives of prison security and inmate

rehabilitation.          See Thornburgh v. Abbott, 490 U.S. 401, 411-12

(1989); Procunier v. Martinez, 416 U.S. 396, 412-13 (1974); see

also United States v. Workman, 80 F.3d 688, 698-99 (2d Cir.

1996).

             Here, jail officials’ search of Cook’s mail was part

of   an    effort      to    prevent        him     from       further        secreting     or

trafficking in stolen goods.                  Because their actions were based

on   a    reasonable      belief     that     the     correspondence           in   question

contained     information          regarding       such       criminal    activity,        the

search of Cook’s mail was reasonably related to a legitimate

penological interest and did not offend his Fourth Amendment

rights.

             Additionally, we find meritless Cook’s claim that his

conviction     for       violating       18       U.S.C.       §   922(g)(1)        exceeded

Congress’s     authority       under        the     Commerce       Clause.          As    Cook

concedes, we have previously held that 18 U.S.C. § 922(g)(1) is

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a    legitimate    exercise      of     Congress’s      authority        to     regulate

interstate     commerce       because    the     statute    “expressly         requires

proof of a nexus with interstate commerce.”                       United States v.

Gallimore, 247 F.3d 134, 138 (4th Cir. 2001).

            Finally, regarding the parties’ joint motion to vacate

Cook’s sentence, we hold that, in light of our recent decision

in   Simmons    and     the    record    before     us,    Cook    was        improperly

sentenced under 18 U.S.C. § 924(e)(1). 1                In Simmons, we overruled

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

determined that 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, 649 F.3d at 241-47.

            Here, Cook’s sentencing under 18 U.S.C. § 924(e)(1)

was predicated on his three previous North Carolina convictions

for felony breaking and entering into a residence and one North

Carolina conviction for felony robbery with a dangerous weapon.

The North Carolina judgments included in the record before us

indicate   that    at    least    two    of    Cook’s     three    convictions      for

breaking and entering were Class H felonies, and that he had a

      1
       We of course do not fault the district court for its
reliance upon, and application of, unambiguous circuit authority
at the time of Cook’s conviction and sentencing.



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Prior Record Level (“PRL”) of I at the time of each conviction. 2

Under North Carolina’s structured sentencing law, no person with

a conviction for a Class H offense and a PRL of I could receive

more than ten months’ imprisonment.                     See N.C. Gen. Stat. § 15A-

1340.17(c)-(d) (2007) (applicable to offenses committed on or

after December 1, 1995, and on or before November 30, 2009).

Therefore,     at    least   two    of           Cook’s    breaking     and    entering

convictions do not qualify as a “felony” under § 924(e)(1).                            See

18 U.S.C. § 924(e)(2)(B).          Consequently, we find that Cook lacks

the three violent or drug related felony convictions necessary

to trigger sentencing under 18 U.S.C. § 924(e)(1).

             Accordingly,    we    grant         the    parties’   joint      motion    to

vacate   Cook’s      sentence     and        remand       for   further    proceedings

consistent    with    Simmons.          By       this    disposition,     however,     we

express no opinion as to whether Cook’s third North Carolina

conviction for breaking and entering properly qualifies as a

felony for the purposes of determining Cook’s sentence, leaving

that determination in the first instance to the district court.

             Therefore, we affirm the district court’s denial of

Cook’s motion to suppress, affirm his conviction, vacate his

     2
        Cook claims that his third conviction for breaking and
entering was also a Class H felony and that he was sentenced
based on a PRL of I, but we cannot verify this assertion as a
copy of the relevant judgment is not included in the record on
appeal.



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sentence,   and   remand   to   the    district   court   for   resentencing

consistent with Simmons.        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




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