                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4672


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

STANFORD DEWAYNE CARSTARPHEN,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:09-cr-00317-TDS-1)


Submitted:   September 21, 2011          Decided:     September 28, 2011


Before MOTZ and    KING,    Circuit   Judges,   and    HAMILTON,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished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. John W. Stone, Jr., Acting 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Unpublished opinions are not binding precedent in this circuit.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:

               Stanford DeWayne Carstarphen pled guilty pursuant to a

written    plea       agreement     to    one     count    of     being     a    felon    in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),

924(e) (2006).          At Carstarphen’s Rule 11 hearing, he reserved

the right to challenge application of the Armed Career Criminal

Act.      At    sentencing,       Carstarphen’s       counsel         objected     to    the

presentence          report’s     recommendation            that       Carstarphen        be

sentenced as an armed career criminal, pursuant to 18 U.S.C.

§ 924(e).           Specifically, Carstarphen claimed that one of his

prior convictions should not count as a felony because under the

North    Carolina       Structured       Sentencing       Act    he    could     not     have

received a sentence in excess of one year due to his prior

record    level.        N.C.    Gen.     Stat.     § 15A-1340.17(c)-(d)            (2009).

Carstarphen acknowledged that this argument was then foreclosed

by this court’s decision in United States v. Harp, 406 F.3d 242

(4th Cir. 2005), but argued that Harp should be overruled.

               On    appeal,    the      only    issue     Carstarphen          raises     is

whether    he       should   have     been      sentenced       as    an   armed    career

criminal and therefore subject to enhanced penalties.                              Section

924(e) subjects a violator of section 922 to enhanced penalties

if he has “three previous convictions by any court . . . for a

violent felony or serious drug offense, or both.”                               18 U.S.C.

§ 924(e)(1).         A “violent felony” must, among other requirements,

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be “punishable by imprisonment for a term exceeding one year.”

18 U.S.C. § 924(e)(2)(B).         The record and state law support

Carstarphen’s contention that his prior offense was punishable

by no more than eight months’ imprisonment.           When Carstarphen

raised this argument in the district court, it was foreclosed by

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

2005).     Subsequently, however, we overruled Harp with our en

banc decision in United States v. Simmons, __ F.3d __, 2011 WL

3607266 (4th Cir. 2011) (en banc).

           Because Carstarphen has not challenged his conviction

on appeal, we affirm his conviction.         In light of our decision

in Simmons, we conclude that Carstarphen’s argument on appeal

has   merit.   Therefore,    we   vacate   Carstarphen’s   sentence   and

remand the case to the district court for resentencing. ∗              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



      ∗
       We of course do not fault the Government or the district
court for their reliance on, and application of, unambiguous
circuit authority at the time of Carstarphen’s sentencing.



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