                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 11-4359


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

ANTOINE WILSON,

                  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-00213-F-2)


Submitted:   September 22, 2011             Decided:   October 11, 2011


Before MOTZ, SHEDD, and KEENAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Lewis A. Thompson, III, BANZET, THOMPSON & STYERS, PLLC,
Warrenton,   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Unpublished opinions are not binding precedent in this circuit.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:

              Antoine Wilson was charged with being in possession of

a firearm having been previously convicted of a crime punishable

by imprisonment for a term exceeding one year.                            Wilson filed a

motion   to    dismiss       the    charges      against      him    in    light       of    the

Supreme Court’s decision in Carachuri-Rosendo v. Holder, 130 S.

Ct.    2577   (2010)       (“We    hold     that    when      a   defendant         has     been

convicted     of    a     simple    possession      offense       that     has      not     been

enhanced based on the fact of a prior felony conviction, he has

not been ‘convicted’” of the enhanced offense).                            Wilson argued

that    he    had    no    prior    conviction          punishable        by    a   term     of

imprisonment        exceeding      one    year.         The   district         court   denied

Wilson’s motion but allowed him to enter a conditional guilty

plea preserving           this    issue   for     appeal.         The   court       sentenced

Wilson   to    twenty-six         months’    imprisonment,          and    Wilson      timely

appealed.

              Following      the    issuance       of    this     court’s       opinion       in

United States v. Simmons, 649 F.3d 237, 2011 WL 3607266 (4th

Cir. 2011) (en banc), Wilson has filed in this court a motion to

vacate his conviction and remand for further proceedings.                                    The




                                             2
Government   does     not      oppose    the   motion. 1        We    grant     Wilson’s

motion.

          In reviewing the denial of a motion to dismiss the

indictment, we review the district court’s factual findings for

clear error and its legal conclusions de novo.                       United States v.

Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005).

          Under      18       U.S.C.    § 922(g),   it     is   unlawful        for   one

previously convicted of a felony to possess “in or affecting

commerce[] any firearm or ammunition.”               A felony is defined as a

conviction     “in    any       court     of   []   a      crime      punishable       by

imprisonment    for       a    term     exceeding   one     year.”         18     U.S.C.

§ 922(g)(1).      At the time the district court denied Wilson’s

motion to dismiss, his argument that he had no prior felony

convictions in the district court was foreclosed by our decision

in United States v. Harp, 406 F.3d 242, 246-47 (4th Cir. 2005)

(holding that “to determine whether a conviction is for a crime

punishable by a prison term exceeding one year” the court should

consider “the maximum aggravated sentence that could be imposed


     1
       While the Government’s response first notes that Wilson
moved this court “to vacate [his] conviction and remand to the
trial court,” the response later states that the Government
requests that Wilson’s “sentence be vacated and the case
remanded to the district court for resentencing.”    However, as
Wilson challenges only his conviction in this court, not his
sentence, we assume that the Government’s stated acquiescence in
resentencing reflects an inadvertent clerical error.



                                           3
for that crime upon a defendant with the worst possible criminal

history” and not the maximum sentence that could be imposed on

the actual defendant being sentenced).                         Subsequently, however,

this court overruled Harp with its en banc decision in Simmons,

(holding that consideration of hypothetical aggravating factors

and criminal history is inappropriate when determining whether a

prior offense constitutes a felony).

                 In view of our holding in Simmons, we grant Wilson’s

motion      to    vacate    his    conviction         and    remand    the    case    to   the

district         court   for   proceedings          consistent    with       this    opinion.

Because we cannot determine from the current record whether, in

light of Simmons, Wilson’s prior conviction would qualify as a

felony under § 922(g)(1), we express no opinion on that issue

and leave that determination, as well as the companion question

whether      the     judgment      should      be     reimposed       or    the   indictment

dismissed, for the district court on remand. 2                             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.                                The clerk is

directed to issue the mandate forthwith.

                                                                  VACATED AND REMANDED

       2
       We of course do not fault the Government or the district
court for reliance on, and application of, unambiguous circuit
authority at the time of Wilson’s indictment and conviction.



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