                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4077


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KEVIN LEE JOHNSON, a/k/a Lil KP, a/k/a KP,

                Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:07-cr-00061-FDW-12)


Submitted:   September 8, 2011            Decided:   October 3, 2011


Before NIEMEYER, KING, and SHEDD, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished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


Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant.    Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Kevin Lee Johnson appeals his conviction and the 240-

month sentence imposed after he pled guilty to drug conspiracy,

in violation of 21 U.S.C. §§ 841(b)(1)(A), (B), (C), (D), 846

(2006).         The   Government           filed       an    information            pursuant       to    21

U.S.C.        § 851(a)(1)          (2006),     setting             forth       two        prior    North

Carolina felony drug convictions, thereby subjecting Johnson to

a   statutorily            mandated     minimum             term    of        life    imprisonment.

Subsequently, based on Johnson’s cooperation, the district court

granted the Government’s motion to withdraw one of the prior

convictions and sentenced Johnson to the resulting statutorily

mandated        minimum       sentence        of       240     months          of     imprisonment.

Johnson appealed.

               Counsel has filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), noting no meritorious issues

for appeal that would invalidate Johnson’s guilty plea.                                           Johnson

filed    a     pro    se    supplemental       brief          and        motion      to    modify       his

sentence,       challenging          his    conviction             and    sentence         on     several

grounds.        The Government declined to file a brief and has not

filed     a    motion        to     dismiss    based           on    the        appellate         waiver

contained in Johnson’s written plea agreement.                                  We have reviewed

the record and conclude that the district court substantially

complied       with    the        requirements         of     Fed.       R.    Crim.       P.     11    and

ensured       that    Johnson’s        plea        was       knowing          and    voluntary          and

                                                   2
supported    by     a    sufficient        factual      basis.        Consequently,      we

affirm Johnson’s conviction.

            We vacate Johnson’s sentence, however, and remand for

further proceedings in light of our recent en banc opinion in

United States v. Simmons, 649 F.3d 237 (4th Cir. 2011).                                 The

present record is not sufficient to allow a determination of

whether, after Simmons, Johnson’s prior convictions qualify as a

felony    drug     offense        for    purposes       of   an     enhanced    statutory

penalty     under       21    U.S.C.       §§ 841(b),        851.      We     leave    this

determination to the district court on remand.

            In accordance with Anders, we have reviewed the entire

record in this case and have found one meritorious sentencing

issue     requiring          remand.           We     therefore      affirm     Johnson’s

conviction, but vacate his sentence and remand to the district

court for further proceedings consistent with this opinion.                             We

deny Johnson’s motion to modify his sentence.                          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 AND REMANDED IN PART




                                                3
