                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4843


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DARIUS LAMONT GALLOWAY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:07-cr-00036-F-1)


Submitted:   December 7, 2011             Decided:   December 22, 2011


Before MOTZ and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part and remanded by unpublished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


Jorgelina E. Araneda, ARANEDA LAW FIRM, 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Unpublished opinions are not binding precedent in this circuit.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:

            Darius   Lamont     Galloway        appeals    his       convictions      and

resulting     360-month    sentence           following    a     jury     trial       for

possession    with   intent     to   distribute      fifty      grams    or    more    of

cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006) (Count

One); possession of a firearm by a felon, in violation of 18

U.S.C. §§ 922(g)(1), 924 (2006) (Count Two); and possession of a

firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c) (2006) (Count Three).                    On appeal, Galloway

contends that the district court erred by (1) overruling his

hearsay     objection     to    officers’         testimony       at     trial;        (2)

calculating    his   advisory        Guidelines     range       without       making    a

specific finding as to drug quantities; (3) sentencing him as a

career    offender   pursuant        to   the    U.S.     Sentencing       Guidelines

Manual (“USSG”) § 4B1.1(a) (2010); and (4) denying his motion

for a judgment of acquittal as to Count One and Count Three.

While we find no fault with his convictions, in light of our

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

Cir. 2011) (en banc), we agree with Galloway that he is no

longer a career offender for sentencing purposes.                        Accordingly,

we   affirm   Galloway’s       convictions,       vacate       his     sentence,      and

remand for resentencing.

            We first address Galloway’s arguments on appeal with

respect to his convictions.           Galloway contends that the district

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court erred in overruling his hearsay objection to testimony

provided by Detective Little and Sergeant Worthington at trial.

When describing their involvement in the case, both officers

testified      that   Brent    Best,    a    Government     informant,     called

Detective Little and stated that Galloway was selling narcotics

from Best’s residence.         The district court overruled Galloway’s

hearsay objection, finding that Best’s out of court statement

was not offered for the truth of the matter asserted, but rather

“to show the reason further actions were taken by Mr. Little.”

              We review the district court’s evidentiary rulings for

abuse of discretion.          United States v. Delfino, 510 F.3d 468,

470 (4th Cir. 2007) (citing United States v. Hedgepeth, 418 F.3d

411,    419   (4th    Cir.    2005)).       A   district    court     abuses   its

discretion when it “acts arbitrarily or irrationally, fails to

consider judicially recognized factors constraining its exercise

of discretion, relies on erroneous factual or legal premises, or

commits an error of law.”         Hedgepeth, 418 F.3d at 419.             Hearsay

is an out of court statement “offered in evidence to prove the

truth of the matter asserted.”              Fed. R. Evid. 801(c).        However,

“an out of court statement is not hearsay if it is offered for

the limited purpose of explaining why a government investigation

was undertaken.”       United States v. Love, 767 F.2d 1052 (4th Cir.

1985)    (internal      quotation       marks     and      citation    omitted).

Therefore, as the statements were offered to establish why the

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officers went to Best’s home to investigate the possible sale of

narcotics,     we    find   that       the    district      court     acted     within     its

discretion      in     admitting             Detective         Little     and        Sergeant

Worthington’s testimony as non-hearsay.

           Galloway next contends that the district court erred

in denying his motion for a judgment of acquittal as to Count

One, possession with intent to distribute cocaine, and Count

Three,   possession         of    a    firearm        in    furtherance        of    a     drug

trafficking     crime.           We    review       de     novo   a   district        court’s

decision to deny a Rule 29 motion for a judgment of acquittal.

United States v. Hickman, 626 F.3d 756, 762-63 (4th Cir. 2010).

In reviewing the sufficiency of the evidence, this court’s “role

is limited to considering whether there is substantial evidence,

taking the view most favorable to the Government, to support the

conviction.”         Delfino,         510    F.3d     at    471   (citation         omitted).

“[S]ubstantial evidence is evidence that a reasonable finder of

fact   could    accept      as    adequate         and     sufficient     to    support      a

conclusion of a defendant's guilt beyond a reasonable doubt.”

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en

banc).   “Reversal for insufficient evidence is reserved for the

rare case where the prosecution’s failure is clear.”                                     United

States   v.    Ashley,      606       F.3d     135,      138   (4th     Cir.)       (internal

quotation marks omitted), cert. denied, 131 S. Ct. 428 (2010).

The record reflects that this is not such a rare case; rather,

                                               4
there was ample evidence to support Galloway’s convictions on

Counts     One         and     Three.        Accordingly,                 we   affirm        Galloway’s

convictions.

              We now turn to Galloway’s challenges to his sentence.

We   review        a    sentence        imposed        by    a       district       court         under   a

deferential            abuse    of     discretion           standard.             Gall       v.    United

States,      552       U.S.     38,    46    (2007).             A       district    court        commits

significant        procedural           error    when        it      improperly         calculates         a

defendant’s Guidelines range.                      Id. at 51.                  Pursuant to USSG §

4B1.1(a), a defendant is designated a career offender if he “has

at   least    two        prior      felony      convictions              of    either    a    crime       of

violence or a controlled substance offense.”

              Galloway and the Government agree that the district

court erred in sentencing Galloway as a career offender in light

of Simmons.             Consistent with this court’s decision in United

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

court determined that Galloway qualified as a career offender

based    upon      his       1999     and   2003   North             Carolina     convictions         for

possession with intent to sell and deliver cocaine, possession

with intent to sell marijuana, and conspiracy to possess with

intent to sell marijuana, as well as his 2001 South Carolina

conviction         for         possession        of         marijuana           with     intent           to

distribute.            This court recently overruled Harp in its en banc

decision      in        Simmons,        finding        that          a    North     Carolina        state

                                                   5
conviction may not be classified as a conviction punishable by a

term of imprisonment exceeding one year based on the maximum

aggravated sentence that could be imposed on a repeat offender

if the individual defendant was not himself eligible for such a

sentence.       Simmons, 649 F.3d at 241, 243-48.                 Our review of the

record reveals that Galloway was not eligible for a sentence

exceeding       one     year     for     his     North    Carolina      convictions.

Accordingly, Galloway’s 2001 South Carolina conviction remains

his only felony conviction for a controlled substance offense,

and Galloway no longer has the requisite predicate offenses to

qualify as a career offender.

            Galloway          next      argues    that      the    district       court

erroneously calculated his sentencing Guidelines range without

making a specific finding as to the quantity of drugs in his

possession.           Galloway’s       argument    is    misplaced.     Because     the

district court calculated Galloway’s advisory Guidelines range

based    upon    his    career       offender     status,    the    court   was    not

required to make a finding as to drug quantities.                           See USSG

§ 4B1.1(b).       In light of the fact that Galloway is no longer a

career offender, however, the district court upon remand must

determine       the    drug     quantities       attributable      to   Galloway     to

calculate his new Guidelines range.

            Accordingly, we affirm Galloway’s convictions, vacate

his     sentence,      and     remand    for     resentencing      consistent      with

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Simmons.      We also deny Galloway’s motion for leave to file a

supplemental brief.       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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