                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5026


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MARIO SUNDRAY DOUGLAS, a/k/a Bird,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00310-WO-1)


Submitted:   September 6, 2011           Decided:   September 19, 2011


Before MOTZ, AGEE, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant.    Anna Mills Wagoner, United States Attorney,
Randall S. Galyon, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Mario Sundray Douglas appeals his 117-month sentence

for    possession          with     intent    to   distribute      cocaine      base,    in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2006).                              For the

reasons set forth below, we vacate Douglas’ sentence and remand

for resentencing.

            On     appeal,          Douglas    argues       that   his     prior     state

conviction       for       possession     with     intent    to    sell    and     deliver

cocaine was not punishable under North Carolina law by a term of

imprisonment exceeding one year and therefore he was improperly

designated    as       a     career    offender.        Because     Douglas      did     not

challenge his career offender designation before the district

court, we review his claim for plain error.                         United States v.

Hargrove, 625 F.3d 170, 184 (4th Cir. 2010), petition for cert.

filed (Mar. 8, 2011).

            Douglas was sentenced consistent with our decision in

United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005), which

held that, in determining whether a conviction is for a crime

punishable by a prison term exceeding one year, a district court

must   consider        the    maximum     aggravated     sentence        that    would    be

imposed for that crime upon a defendant with the worst possible

criminal history.             Id.     Although Douglas was sentenced to only

eight to ten months of imprisonment for the state drug offense,

he was found guilty of a Class H felony under North Carolina

                                               2
law, which carried a maximum penalty of more than one year of

imprisonment.         See N.C. Gen. Stat. §§ 90-95(a); 15A-1340.17(c),

(d) (LexisNexis 2009).

              Thus,    because      under     North      Carolina         law   the     maximum

aggravated sentence that could be imposed for felony possession

with intent to sell and deliver cocaine upon a defendant with

the   worst       possible     history       exceeded         one    year,      under      Harp,

Douglas      qualified    as    a    career       offender          as    defined     in    U.S.

Sentencing Guidelines Manual §§ 4B1.1(a), 4B1.2(b) (2008). 1                                  We

recently overruled Harp, however, with our en banc decision in

United States v. Simmons, No. 08-4475, 2011 WL 3607266, at *3

(4th Cir. Aug. 17, 2011), holding that a North Carolina offense

may   not    be    classified       as   a    felony      based          upon   the     maximum

aggravated sentence that could be imposed upon a repeat offender

if    the    individual      defendant        was       not    eligible         for   such    a

sentence.      Id. at *8.

              Based on our review of the record, we find that an

offender possessing the same prior criminal record as Douglas at

the   time    of    his   offense     could       not    have       received     a    sentence

exceeding one year under North Carolina’s structured sentencing


      1
       Douglas concedes that his prior state conviction for
felony discharge of a weapon into occupied property was properly
considered a predicate conviction for career offender purposes
pursuant to USSG § 4B1.1(a).



                                              3
scheme.           See    N.C.    Gen.       Stat.    § 15A-1340-17(c),          (d).     We

therefore         conclude      the       district    court     erred     in     sentencing

Douglas as a career offender and that the error was plain. 2

Moreover, in light of the downward departure that was granted by

the district court at sentencing, it appears that Douglas may

well       have    received      a    lower       sentence     if    he   had    not   been

erroneously designated as a career offender, 3 and we therefore

conclude      that       the    plain     error     affected    Douglas’        substantial

rights and that “there exists a nonspeculative basis to infer

prejudice         that   ‘seriously        affects    the     fairness,    integrity     or

public reputation of judicial proceedings.’”                           United States v.

Slade, 631 F.3d 185, 192 (4th Cir.) (citing United States v.

Olano, 507 U.S. 725, 736 (1993)), cert. denied, 131 S. Ct. 2943

(2011).

              Accordingly,           we    vacate    Douglas’       sentence,    including

the term of supervised release, 4 and remand for resentencing in

accordance with Simmons.                  We dispense with oral argument because

the facts and legal contentions are adequately presented in the


       2
       The district court, of course, did not have the benefit of
Simmons at the time of Douglas’ sentencing.
       3
       We express no opinion on the ultimate sentence Douglas may
receive on remand.
       4
       Because we vacate the sentence in its entirety, we find it
unnecessary to consider Douglas’ argument that his eight-year
term of supervised release was unreasonable.



                                               4
materials   before   the   court   and   argument   would   not   aid   the

decisional process.



                                                    VACATED AND REMANDED




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