                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4169


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MONTRELL RAYNOR TUCKER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever, III,
Chief District Judge. (5:14-cr-00214-D-1)


Submitted:   November 30, 2015            Decided:   January 19, 2016


Before WILKINSON, KING, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

     Montrell Raynor Tucker pled guilty without a plea agreement

to possession of a firearm and ammunition by a convicted felon,

in violation of 18 U.S.C. §§ 922(g)(1), 924 (2012).                       He received

a 78-month sentence.             His sole claim on appeal is that the

sentencing court erred in applying U.S. Sentencing Guidelines

Manual § 2K2.1(a)(4)(A) (2014) (directing a base offense level

of 20 if the defendant committed the offense after sustaining a

felony conviction for either a “crime of violence” or controlled

substance offense), in light of the Supreme Court’s subsequent

decision in Johnson v. United States, 135 S. Ct. 2551 (2015).

We affirm.

     We    review     a   defendant’s         sentence      “under   a    deferential

abuse-of-discretion standard.”                Gall v. United States, 552 U.S.

38, 41 (2007).        Under this standard, a sentence is reviewed for

both procedural and substantive reasonableness.                      Id. at 51.     In

determining procedural reasonableness, we consider whether the

district     court    properly         calculated     the    defendant’s      advisory

Guidelines range, gave the parties an opportunity to argue for

an appropriate sentence, considered the                       18 U.S.C. § 3553(a)

(2012)     factors,       and        sufficiently      explained        the   selected

sentence.     Id. at 49-51.            If a sentence is free of “significant

procedural     error,”          we     then       review     it   for     substantive

reasonableness,       “taking         into    account       the   totality    of   the

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circumstances.”          Id. at 51.            “Any sentence that is within or

below a properly calculated Guidelines range is presumptively

reasonable.”         United States v. Louthian, 756 F.3d 295, 306 (4th

Cir.), cert. denied, 135 S. Ct. 421 (2014).                           Such a presumption

can    only     be    rebutted       by    a     showing      that     the       sentence       is

unreasonable when measured against the § 3553(a) factors.                                 Id.

       Tucker       maintains      that     he      is   entitled       to       resentencing

because       his    prior    North        Carolina      conviction          for        attempted

breaking       and    entering       no     longer       constitutes         a        “crime    of

violence”      for    purposes       of    USSG     § 2K2.1(a)(4)(A)             in     light   of

Johnson,      in     which   the     Supreme        Court    held     that    the       residual

clause of the Armed Career Criminal Act—the final clause of 18

U.S.C.    § 924(e)(2)(B)(ii)              (2012)—is         unconstitutionally            vague.

135 S. Ct. at           2557 (“[T]he indeterminacy of the wide-ranging

inquiry required by the residual clause both denies fair notice

to    defendants       and    invites       arbitrary         enforcement          by    judges.

Increasing a defendant’s sentence under the clause denies due

process of law.”).

       Because Tucker did not object below to the application of

USSG     § 2K2.1(a)(4)(A),           his       claim     that    the     district          court

improperly calculated his Guidelines range is reviewed for plain

error, a       standard      which    requires         Tucker    to    establish          (1)   an

error, (2) that is plain, and that not only (3) affects his

substantial rights, but also (4) seriously affects the fairness,

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integrity, or public reputation of judicial proceedings.                              United

States v. Brack, 651 F.3d 388, 392 (4th Cir. 2011).

       Assuming, without deciding, that Tucker’s prior conviction

for attempted breaking and entering no longer qualifies as a

crime of violence in light of Johnson, our review of the record

confirms that Tucker has a prior 2005 North Carolina conviction

for selling cocaine, which in any event serves as a qualifying

offense    under    the    disputed     Guideline.              With    respect      to   this

prior conviction, a Class G felony, the state court sentenced

Tucker in the mitigating sentencing range to 8 to 10 months’

imprisonment.       Although United States v. Simmons, 649 F.3d 237

(4th   Cir.     2011)     (en   banc)   prohibits          a     district      court      from

considering the aggravated sentencing range unless that range

applied in the defendant’s case, we have held that a district

court should consider the presumptive range of a defendant who

was sentenced in the mitigated range.                          United States v. Kerr,

737 F.3d 33, 38-39 & n.8 (4th Cir. 2013) (noting that North

Carolina      law      allows     judges       to        impose        sentences      within

presumptive       range    even    if   mitigated          range       applies,      whereas

judges    may    not    impose    sentences         in    aggravated         range    absent

requisite       findings),      cert.   denied,          134    S.     Ct.   1773    (2014).

Here, even though Tucker was sentenced in the mitigated range,

his presumptive sentencing range for the drug offense allowed

for a maximum sentence of more than 12 months’ imprisonment.

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See    N.C.    Gen.    Stat.    §    15A-1340.17(c)           (2013)     (providing

presumptive sentence of 10 to 13 months for defendant convicted

of Class G felony with prior Record Level I).

       Thus, the district court did not plainly err in applying

USSG     §    2K2.1(a)(4)(A)         to       fashion        Tucker’s    sentence.

Accordingly,    we    affirm   the   judgment.          We    dispense   with   oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.



                                                                          AFFIRMED




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