                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4480


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TERRELL BARTEL ANTHONY MILLER,

                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-00272-NCT-2)


Submitted:   September 30, 2011           Decided:   October 3, 2011


Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Steven Kiersh, Washington, DC, for Appellant.    John W. Stone,
Jr., Acting 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Unpublished opinions are not binding precedent in this circuit.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:

           Terrell Bartel Anthony Miller appeals his conviction

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

of 18 U.S.C. § 922(g)(1) (2006).              He asserts that his prior

North Carolina conviction for possession with intent to sell and

deliver   marijuana    was    not   a   felony   and   therefore     could   not

support his federal indictment.             We conclude that our recent

decision in United States v. Simmons, 649 F.3d 237 (4th Cir.

2011) (en banc), calls into question whether Miller’s predicate

conviction was “a crime punishable by imprisonment for a term

exceeding one year.”     18 U.S.C. § 922(g).

           Because we cannot determine on the record before us

whether, in light of Simmons, Miller’s North Carolina conviction

is a felony or a misdemeanor, we vacate the judgment and remand

this case to the district court for the court to make such

determination in the first instance.             Should the district court

determine that the prior conviction is a felony, it may reimpose

the judgment.    Should the district court conclude, however, that

Miller’s predicate North Carolina conviction is a misdemeanor,

we are confident that the court will ensure that appropriate

remedial action follows.

           The clerk is directed to issue the mandate forthwith.

We   dispense   with   oral   argument      because    the   facts   and   legal



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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                             VACATED AND REMANDED




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