                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4119


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TAHJI ANTONIO ELEY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:10-cr-00196-F-3)


Submitted:   November 17, 2011            Decided:   November 29, 2011


Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished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


Bridgett Britt Aguirre, Fuquay-Varina, North Carolina, for
Appellant.    Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Tahji Antonio Eley pled guilty, pursuant to a plea

agreement, to conspiracy to commit robbery, in violation of 18

U.S.C.     § 1951       (2006),       using    and    carrying      a   firearm     during   a

crime of violence, in violation of 18 U.S.C. § 924(c) (2006),

and possession of a firearm by a convicted felon, in violation

of 18 U.S.C. § 922(g)(1) (2006).                         Eley was sentenced to a 244-

month      term    of    imprisonment.              Eley   appealed.        Following      our

decision          in    United        States        v.     Simmons,       649      F.3d    237

(4th Cir. 2011)          (en        banc),    Eley       asserted    he    was     improperly

sentenced as a career offender, and he filed an unopposed motion

to remand the case for resentencing.                        We affirm in part, vacate

in part, and remand for further proceedings.

              Based      on     his    prior    North      Carolina       convictions,     the

district court sentenced Eley as a career offender.                               However, it

is   now    clear       that    one    of     his    predicate      convictions      was   not

punishable by imprisonment for a term exceeding one year.                                  See

N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting minimum and

maximum sentences applicable under North Carolina’s structured

sentencing scheme).             When Eley argued in the district court that

his convictions could not serve as predicate offenses for the

purposes of career offender status, the argument was foreclosed

by   our     decision          in    United     States      v.   Harp,      406    F.3d    242

(4th Cir. 2005).           Subsequently, however, we overruled Harp with

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our en banc decision in Simmons, in which we sustained a similar

argument in favor of the defendant.

              In view of our holding in Simmons, we vacate Eley’s

sentence and remand for further proceedings.                     Because we cannot

determine      from   the     record       before    us     whether,   in     light    of

Simmons, Eley’s § 922(g)(1) conviction is supported by a prior

felony conviction, we vacate Eley’s § 922(g)(1) conviction and

remand   for    the     district      to    make     that    determination.           The

district court shall reinstate the § 922(g) conviction in the

event    it    concludes       Eley     has      a    qualifying       prior     felony

conviction.      We affirm Eley’s remaining convictions and deny the

motion   to    remand    as    moot.        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




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