                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5082


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAVAR EUGENE SUTTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00165-TDS-1)


Submitted:   September 20, 2011          Decided:   September 29, 2011


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


Vacated and remanded by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant.     Anna Mills Wagoner, United States
Attorney, Anand P. Ramaswamy, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Javar Eugene Sutton pled guilty to unlawful possession

of a firearm by a convicted felon and was sentenced as an armed

career criminal to a term of 180 months’ imprisonment.                               See 18

U.S.C. §§ 922(g)(1), 924(e) (2006);                    U.S. Sentencing Guidelines

Manual § 4B1.4 (2008).               On appeal, Sutton contends that one of

his predicate convictions for armed career criminal status was

not     punishable      by    more     than    one    year    of     imprisonment          and

therefore     he     was     incorrectly       sentenced      as     an    armed     career

criminal.     In light of our decision in United States v. Simmons,

___ F.3d ___, 2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en

banc), we vacate the sentence and remand for resentencing.

             Under      § 924(e),       a     defendant       is     an    armed     career

criminal     if    he       violates     § 922(g)(1)         and     has    three     prior

convictions       for   a    serious     drug      offense    or     a    violent    felony

“punishable by imprisonment for a term exceeding one year[.]”

See 18 U.S.C. § 924(e)(2)(B).                     In the district court, Sutton

conceded that he had two predicate convictions, but argued that

his 2005 consolidated convictions for breaking and entering, and

larceny after breaking and entering, for which he received a

sentence of 4-5 months’ imprisonment, could not serve as the

third     predicate        conviction       because        neither       offense     was    a

“felony,”    as    defined      in    § 922(g)       and   § 924(e).         Under    North

Carolina law, both offenses were Class H felonies and Sutton was

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in   criminal     history     category      II.         Under    the   North    Carolina

structured       sentencing         scheme,       the     presumptive       range      of

punishment for a defendant with a Class H felony in criminal

history category II is 5-6 months.                  See N.C. Gen. Stat. § 15A-

1340.17(c)-(d).           (setting    out       minimum    and    maximum      sentences

applicable under North Carolina’s structured sentencing regime).

If aggravating factors are found, the maximum sentence is 10-12

months.       Sutton argued that, because his sentence was in the

mitigated      range   of     4-5    months,      the     judge    must   have       found

mitigating      factors,      and   thus    he     could    not    have   received      a

sentence of more than one year. *

              The district court found that Sutton’s argument was

foreclosed by United States v. Harp, 406 F.3d 242, 246 (4th Cir.

2005).       The court imposed a sentence of 180 months, below the

Guidelines       range,     finding     that       Sutton’s       current      age     and

“relative age at the time the various prior criminal convictions

were       incurred”   were    mitigating         factors.         Subsequently,        we

overruled Harp with an en banc decision in Simmons, sustaining a

similar argument in favor of the defendant.




       *
       We observe that even if aggravating factors were present,
the maximum sentence for a defendant like Sutton, with a
criminal history category of II, is 12 months imprisonment, and
thus not “more than one year,” as required by § 924(e)(2)(B).



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           In    light    of   our   holding   in   Simmons,    we    vacate   the

sentence   imposed       by    the    district      court   and       remand   for

resentencing.     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.

                                                          VACATED AND REMANDED




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