                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-5016


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

BRIAN KEITH LUCAS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:09-cr-00158-F-5)


Submitted:   June 15, 2012                    Decided:    June 29, 2012


Before TRAXLER,   Chief   Judge,   and   NIEMEYER   and   KING,   Circuit
Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Jorgelina E. Araneda, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Assistant United States Attorney, Kristine L. Fritz,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.



Unpublished opinions are not binding precedent in this circuit.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

            Brian Keith Lucas was convicted and sentenced for his

participation in an armed bank robbery.           On appeal, he contests

his competency to stand trial and challenges three aspects of

his sentence.      For the reasons that follow, we affirm Lucas’s

conviction, vacate his sentence, and remand for resentencing in

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

(en banc).



                                   I.

                                  A. *

             Trial testimony established that prior to December 12,

2008,     Appellant   Lucas,   along     with   Marcus    Wiley,   Anthony

Atkinson, and Jerry Barnes, met on several occasions to discuss

plans to rob a Branch Banking and Trust Company (“BB&T”) in Elm

City, North Carolina.     According to the plan, Barnes would serve

as a lookout while Lucas, Wiley, and Atkinson entered the bank.

             On the morning of December 12, 2008, Lucas, Wiley,

Atkinson, and Barnes drove to the bank to scout the general area

for   law   enforcement   personnel.      At    some   point   during   this


      *
       In a case arising from these same general facts, we
recently affirmed the conviction and sentence of one of Lucas’s
co-conspirators. See United States v. Barnes, No. 10-4545, 2012
WL 1655377 (4th Cir. May 11, 2012).



                                   2
morning    ride-around,     the   group     approached      Matthew    Farr   at   a

Short Stop convenience store.           Although everyone in the vehicle

spoke to Farr, Farr testified that Lucas specifically requested

his help, saying “they needed a car.”               J.A. 195.    Farr agreed to

help and testified that Lucas later instructed him on where to

park his vehicle and wait while they were robbing the bank.

             Later that morning, Lucas, Wiley, and Atkinson met up

with Vernon Atkinson (“BJ”), a co-conspirator who had previously

agreed to drive them to and from the bank.                      BJ drove Lucas,

Wiley,    and   Atkinson   toward   the     BB&T,    dropped    them    off   on   a

street right behind the bank, and waited in his vehicle for

their return.     Barnes drove separately and parked his vehicle in

front of a pharmacy that was located directly across the street

from   the   BB&T.    The    location       of   Barnes’s    vehicle    prevented

anyone in the drug store from seeing people entering or exiting

the bank.

             Lucas, Wiley, and Atkinson entered the bank wearing

masks and gloves.      Lucas entered first, yelling “Get down!                 Get

down on the ground!”        J.A. 419.       He proceeded to the desk of the

bank’s relationship banker and assaulted her, pushing her to the

ground, “mashing” her face into the cement floor, and yelling,

“I know who you are!         I know your children!            I know where you

live!”    J.A. 419.    He then dragged her down the hall and, while

she prayed out loud, screamed at her to “Shut up!”                      J.A. 419.

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Meanwhile, Wiley and Atkinson approached the tellers.                                       Lucas had

previously instructed Wiley to go behind the counter when he

entered      the       bank,       and     Wiley    complied       with       this    instruction.

Atkinson threatened the tellers with a .380 caliber revolver

while Wiley gathered together over $28,000.

              The three men then left the bank and ran to BJ’s car.

BJ drove them to Farr’s car, which was parked a few blocks away

according         to     Lucas’s          instructions,          and     Lucas,        Wiley,      and

Atkinson      got       out     of       BJ’s   car      and     into    Farr’s       car.         Farr

testified      that      Lucas        then      instructed       him     to    drive       to    Sleepy

Hollow, a pond outside of Elm City, and explained how to get

there.       Farr further testified that once at Sleepy Hollow, Lucas

gave   him     $1,000         of     the    money       stolen    from    the        bank    for    his

assistance.



                                                   B.

              Lucas was indicted for conspiracy to commit armed bank

robbery, see 18 U.S.C. § 371 (“Count 1”); committing (or aiding

and abetting) armed bank robbery, see 18 U.S.C. § 2113(a), (d);

id.    § 2    (“Count          2”);      and    aiding      and    abetting          the     use   and

carrying of a firearm during a crime of violence, see 18 U.S.C.

§ 924(c)(1)(A)(ii); id. § 2 (“Count 3”).                            On July 2, 2009, Lucas

executed      a    written          plea     agreement         calling    for        him    to   plead

guilty to Counts 2 and 3 of the indictment.

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              Approximately           two    months        later       but     prior     to     his

arraignment,      counsel         for   Lucas       filed        a    Motion     to    Determine

Mental Competency, pursuant to 18 U.S.C. § 4241.                                    The district

court       allowed    the     motion        and    ordered           Lucas    to     undergo     a

psychological          or    psychiatric           examination.               The     evaluating

psychologist found that Lucas was malingering and concluded that

he    was    competent       to   stand      trial.          Despite          these    findings,

several months later, counsel for Lucas moved the court for a

second mental health evaluation based on alleged deteriorating

conditions.            The     court        ordered        the       evaluation,       and      the

psychologist again concluded that Lucas was competent to stand

trial.

              During        Lucas’s     arraignment         on       April     12,    2010,     the

district       court    asked        Lucas     if     he    wished        to    plead     guilty

consistent with the plea agreement, but Lucas did not respond.

Consequently, the court refused to accept his plea agreement,

and the case went to trial, where a jury convicted Lucas of all

three counts in the indictment.                       At sentencing, the district

court    found    that       Lucas    qualified       as     a       career    offender       under

U.S.S.G. § 4B1.1 (2009).                After applying a sentence enhancement

for   Lucas’s     managerial          role    in    the     conspiracy,          the    district

court imposed a sentence of 480 months’ imprisonment.




                                               5
                                                  II.

            On     appeal,        Lucas        contests     his       competency        to    stand

trial and challenges three aspects of his sentence.                                We begin by

addressing Lucas’s competency challenge.



                                                  A.

            Lucas            argues      that      the     district        court     erred          in

proceeding to trial because Lucas was allegedly incompetent to

do so.     We construe this claim as a challenge to the district

court’s factual finding of competency, which we review for clear

error.     See United States v. Robinson, 404 F.3d 850, 856 (4th

Cir.     2005).              “[T]he       defendant        has    the       burden,          ‘by     a

preponderance of the evidence [to show] that the defendant is

presently suffering from a mental disease or defect rendering

him mentally incompetent to the extent that he is unable to

understand        the    nature          and     consequences         of    the     proceedings

against him or to assist properly in his defense.’”                                Id. (second

alteration in original) (quoting 18 U.S.C. § 4241(d)).

            The         district          court        relied    on     two       psychological

evaluations       that       found       Lucas    competent      to    stand      trial.           See

United    States        v.    Mason,      52     F.3d    1286,    1290     (4th     Cir.      1995)

(“Medical     opinions          are       usually        persuasive        evidence      on        the

question     of     whether          a    sufficient        doubt      exists      as    to        the

defendant’s       competence.”            (internal       quotation        marks    omitted)).

                                                   6
Apart from explaining that his interactions with Lucas conflict

with the psychological reports, counsel for Lucas presented no

evidence to the contrary.              Thus, the district court did not

clearly err in finding Lucas competent to stand trial.



                                        B.

            Lucas also challenges three aspects of his sentence.

His first claim is that the district court erred in denying him

a sentence reduction for acceptance of responsibility pursuant

to    U.S.S.G.   § 3E1.1(a).       Lucas,    however,       refused    to   plead

guilty, proceeded to trial, and put the government to its burden

of proof as to the essential factual elements of guilt.                     Thus,

the   district   court    did    not   clearly   err   in    denying    Lucas   a

sentence reduction for acceptance of responsibility.                  See United

States v. Hargrove, 478 F.3d 195, 198 (4th Cir. 2007).

            Lucas next challenges the district court’s application

of a three-level sentence enhancement for his role as a “manager

or    supervisor”    in    the     conspiracy,     pursuant      to     U.S.S.G.

§ 3B1.1(b).      Testimony at trial, however, revealed that Lucas

was involved in planning the robbery, helped recruit Farr, paid

Farr for his assistance, and directed the activities of Farr and

Wiley.     Therefore, the district court did not clearly err in

applying this aggravating role enhancement.                 See United States

v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009).

                                        7
               Finally,      Lucas     argues          that      the     district      court

improperly       characterized         him       as     a     career     offender      under

§ 4B1.1(a) of the Sentencing Guidelines.                         “We review de novo a

question concerning whether a prior state conviction qualifies

as     a     prior     felony   conviction            under      the    career    offender

provision.”          United States v. Jones, 667 F.3d 477, 482 (4th Cir.

2012).

            A defendant is a career offender if (1) the
       defendant was at least eighteen years old at the time
       the   defendant  committed   the  instant  offense  of
       conviction; (2) the instant offense . . . is a felony
       that is . . . a crime of violence . . .; and (3) the
       defendant has at least two prior felony convictions of
       . . . a crime of violence . . . .

U.S.S.G. § 4B1.1(a).            To qualify as a “crime of violence” for

the purposes of § 4B1.1(a), an offense must be “punishable by

imprisonment for a term exceeding one year.”                       Id. § 4B1.2(a).

               The    presentence     report          categorized       two    prior   North

Carolina offenses as predicate offenses for the career offender

guideline: a 2003 conviction for common law robbery and a 2004

conviction       for    larceny      from    the      person.          Lucas   received   a

suspended 13-16 month sentence for the 2003 offense and an 8-10

month sentence for the 2004 offense.                        Lucas contends that the

2004       offense,    for   which    he    received        an   8-10    month   sentence,

cannot serve as a predicate offense.

               At the time of sentencing, the rule in this Circuit

was that “a prior North Carolina conviction was for a crime

                                             8
punishable by imprisonment for a term exceeding one year, if any

defendant charged with that crime could receive a sentence of

more than one year.”          United States v. Harp, 406 F.3d 242, 246

(4th Cir. 2005) (internal citation and quotation marks omitted).

After sentencing in this case, however, we overruled Harp and

held that under North Carolina’s structured sentencing scheme,

an offense is punishable for a term exceeding one year only if

the particular defendant before the court could have received

such a sentence based on his criminal history and the nature of

his offenses.      See Simmons, 649 F.3d at 241-45.                   Therefore, in

light   of   Simmons,    we    vacate   Lucas’s      sentence    and    remand   for

resentencing.



                                        III.

             For   the    foregoing          reasons,    we      affirm     Lucas’s

conviction,    vacate    his    sentence,      and   remand     for    resentencing

consistent with this opinion.                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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