                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5146


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GLENN ELWOOD HIATT, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00017-NCT-1)


Submitted:   September 19, 2011          Decided:   September 29, 2011


Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Todd A. Smith, LAW FIRM OF TODD A. SMITH, Graham, North
Carolina, for Appellant.   Ripley Rand, United States Attorney,
Anand   P.   Ramaswamy,   Assistant   United  States  Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Pursuant to a plea agreement, Glenn Elwood Hiatt, Jr.

pled guilty to possession of a firearm by a convicted felon, in

violation       of     18   U.S.C.       §§ 922(g)(1),           924(e)      (2006).        The

district court designated Hiatt an armed career criminal, based

on several North Carolina state felony breaking and entering

convictions,         and    sentenced       him      to    188   months’      imprisonment.

Hiatt appeals, arguing that his prior state convictions were not

punishable by more than a year in prison and therefore he was

improperly designated an armed career criminal.

            To       qualify      for    the    fifteen      year     mandatory        minimum

punishment      under       the    Armed    Career        Criminal     Act      (“ACCA”),    18

U.S.C. § 924(e), a felon in possession of a firearm must have

three prior convictions for a violent felony or serious drug

offense    or    both,       committed       on      occasions     different       from     one

another.        A qualifying offense must be punishable by a term

exceeding    one       year.       18    U.S.C.      § 924(e)(2)(B).             Under   North

Carolina’s           structured         sentencing          scheme,       sentences         are

calculated based on an offender’s criminal history and whether

his   offense         falls       within       the    mitigated,        presumptive,        or

aggravated range.             N.C. Gen. Stat. § 15A-1340.17(c)-(d) (Lexis

Nexis 2009).

            At       the    time    of     Hiatt’s        conviction      and    sentencing,

existing precedent established that a prior conviction for a

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violent      felony      or     serious      drug     offense        was    punishable        by   a

prison      term      exceeding        one    year          if     the    maximum     aggravated

sentence that would be imposed for that crime upon a defendant

with the worst possible criminal history was more than a year.

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

Recently, however, we overruled Harp with our en banc decision

in United States v. Simmons, 2011 WL 3607266 (4th Cir. Aug. 17,

2011) (No. 08-4475), where we held 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.         Simmons, 2011 WL 3607266, at *3.

                 Hiatt    did    not    receive         a    sentence       exceeding        twelve

months      on    any    of   his     North      Carolina          convictions,       and    it    is

unclear from the record on appeal whether any of his convictions

exposed him to a sentence exceeding twelve months.                                  Accordingly,

we vacate Hiatt’s criminal judgment and remand to the district

court to reconsider Hiatt’s conviction and sentence in light of

Simmons.         Hiatt’s motion to file a pro se supplemental brief is

denied.          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.

                                                                         VACATED AND REMANDED

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