                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 11-4185


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

RODNEY BURRELL,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:10-cr-00056-D-1)


Submitted:   November 3, 2011               Decided:   November 29, 2011


Before MOTZ, SHEDD, and WYNN, Circuit Judges.


Affirmed in part, vacated in part and remanded by unpublished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


Christopher R. Pudelski, LAW OFFICES OF CHRISTOPHER R. PUDELSKI,
Washington, D.C., for Appellant.      Thomas G. Walker, 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Unpublished opinions are not binding precedent in this circuit.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:

            Rodney Burrell was convicted following his guilty plea

to possession with intent to distribute five grams or more of

cocaine base and aiding and abetting another in the same, in

violation of 21 U.S.C. § 841(a)(1) (2006) and 18 U.S.C. § 2

(2006).     At sentencing, Burrell asserted that his prior North

Carolina    conviction   for   possession   with   intent    to   sell   and

deliver marijuana (“marijuana conviction”) did not qualify as a

felony controlled substance offense, as required for the career

offender enhancement, U.S. Sentencing Guidelines Manual (“USSG”)

§ 4B1.1 (2010), because his sentence for that conviction did not

exceed twelve months’ imprisonment. 1       The district court denied

the objection, relying on United States v. Harp, 406 F.3d 242,

246 (4th Cir. 2005), classified Burrell a career offender, and

sentenced Burrell to 300 months’ imprisonment.              Burrell timely

appealed.

            In his opening brief, Burrell reasserted the argument

that his North Carolina marijuana conviction was not punishable

by imprisonment for a term exceeding one year and, thus, that

the conviction could not serve as a predicate for the career

     1
        There is no dispute that Burrell’s North Carolina
conviction   for  voluntary  manslaughter, for   which  Burrell
received a thirty-eight to fifty-five month sentence, qualified
as a predicate felony crime of violence for purposes of the
career offender designation.



                                    2
offender   enhancement.          After   briefing      was    completed,     Burrell

filed a motion to vacate his sentence and to remand this case to

the district court for resentencing in light of United States v.

Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).                   The Government

consents to the remand.           We grant the motion to remand, vacate

Burrell’s sentence, and remand this case to the district court

for   resentencing.        Further,      we   affirm     Burrell’s      conviction,

which is not challenged on appeal.

           Burrell’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     Burrell       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 Burrell’s sentence, 2 and remand this




      2
       We of course fault neither the Government nor the district
court for relying on, and applying, unambiguous circuit
authority at the time of Burrell’s sentencing.



                                         3
case to the district court for resentencing. 3       Finally, we affirm

Burrell’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




     3
       Burrell also asserts that he should be resentenced in
accordance with the Fair Sentencing Act of 2010, Pub. L. No.
111–220, 124 Stat. 2372 (2010) (codified in scattered sections
of 21 U.S.C.).      Because we are remanding this case for
resentencing in light of Simmons, we decline to address this
issue, leaving it instead for the district court to consider in
the first instance.



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