                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-5100


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TIMOTHY DEWAYNE HEGGINS,

                Defendant -   Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:09-cr-00043-RLV-DCK-1)


Submitted:   September 30, 2011             Decided:   October 17, 2011


Before AGEE, DAVIS, and DIAZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


John J. Cacheris, DOZIER, MILLER, POLLARD & MURPHY, LLP,
Charlotte, North Carolina, for Appellant.      Anne M. Tompkins,
United States Attorney, Richard Lee Edwards, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Timothy        Dewayne          Heggins       pled     guilty       to        unlawful

possession        of   a     firearm          by    a     convicted       felon,       18     U.S.C.

§ 922(g)(1) (2006), and was sentenced to a term of eighty-seven

months      of     imprisonment.                   Heggins        appeals     his       sentence,

contending that the district court erred in assigning him a base

offense     level      of    24    under       U.S.       Sentencing       Guidelines        Manual

§ 2K2.1(a)(2) (2009), and in finding that Heggins possessed the

gun    in        connection            with        another        felony     offense,          USSG

§ 2K2.1(b)(6).              In    light       of    our    recent        decision      in    United

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

Aug. 17, 2011) (en banc), we agree with Heggins that his 2007

drug     trafficking         conviction            does    not     qualify     as      a     felony

conviction.        Accordingly, although we affirm the conviction and

the court’s determination that Heggins possessed the firearm in

connection with an armed robbery, we vacate the sentence and

remand for resentencing.

              A    sentence        is     reviewed          for    abuse     of     discretion.

Gall v. United States, 552 U.S. 38, 51 (2007).                                    The district

court commits significant procedural error when it improperly

calculates the Guidelines range.                          Id.      At sentencing, Heggins

objected to the base offense level of 24 on the ground that his

2007   drug       trafficking          conviction          did     not    expose       him    to   a

sentence of more than one year of imprisonment.                                     See § 2K2.1

                                                    2
cmt. n.1 (defining felony conviction).                     He maintained that the

base   offense     level    should    be     20,    pursuant       to    § 2K2.1(a)(4).

Following United States v. Harp, 406 F.3d 242 (4th Cir. 2005),

the court overruled Heggins’ objection and sentenced him within

his Guidelines range to a term of 120 months imprisonment.                                 Harp

has since been overruled by Simmons, which held that, under the

North Carolina structured sentencing scheme, see N.C. Gen. Stat.

§ 15A-1340.17(c)-(d)          (2009),      the      evaluation           of     whether       a

particular conviction was a felony must focus on the maximum

sentence for which a particular defendant was eligible, based on

his own criminal history, rather than the maximum sentence that

could be imposed on a defendant with the worst possible criminal

record.        Simmons, 649 F.3d at ___, 2011 WL 3607266, at *6.

Judged    by    this     standard,    Heggins’          2007    conviction          does   not

qualify as a felony.         Resentencing is thus required.

               Heggins’     second      claim       of      sentencing          error        is

meritless.         The     4-level    increase          under     USSG    § 2K2.1(b)(6)

applies if the defendant possessed a firearm in connection with

another    felony        offense.       In       this     context,       possessing          in

connection       with     another     offense           means     that        the    firearm

“facilitated or had the potential of facilitating” the other

offense.        USSG     § 2K2.1    cmt.   n.14(A).             “This    requirement         is

satisfied if the firearm had some purpose or effect with respect

to the other offense.”             United States v. Jenkins, 566 F.3d 160,

                                             3
163 (4th Cir.), cert. denied, 130 S. Ct. 330 (2009) (internal

quotation marks omitted).

              Heggins’ objection to the enhancement was based wholly

on his assertion that he did not participate in the robbery.

The district court had before it information that the victim had

identified Heggins as one of the robbers and that the victim

said one robber choked him while the other displayed a gun and

stole his money.        The court also heard Heggins’ deny, during his

videotaped interrogation, that he had any involvement in the

robbery.      The district court decided that Heggins’ denial was

not credible, and found as a fact that Heggins had participated

in    the   armed    robbery.      Once   that      fact   was   established,   the

further determination that the gun was possessed in connection

with the robbery followed without dispute.

              An appellate court generally defers to the district

court’s credibility determinations.                 United States v. Abu Ali,

528    F.3d   210,    232   (4th   Cir.   2008).       Given     that   the   victim

identified Heggins as one of the robbers, the district court’s

determination that he took part in the robbery was not clearly

erroneous.      United States v. Battle, 499 F.3d 315, 322-23 (4th

Cir. 2007).          In this appeal, Heggins contends that the court

clearly erred in finding that he took part in the robbery.                       We

disagree,      and    conclude     that       the   enhancement     was   properly

applied.

                                          4
            Because Heggins will be resentenced, his claim that

the    district     court    erred     in    failing        to      impose     a     variance

sentence    below    the    Guidelines           range    is     moot.         However,     on

remand,    before    imposing      sentence,        the    district          court    should,

“[r]egardless       of   whether      [it]       imposes       an     above,    below,     or

within-Guidelines        sentence      . . .        place        on     the     record      an

‘individualized assessment’ based on the particular facts of the

case before it.”           United States v. Carter, 564 F.3d 325, 330

(4th    Cir.     2009)     (quoting     Gall,       552        U.S.     at     50).        The

individualized assessment should “apply the relevant § 3553(a)

factors to the specific circumstances of the case before it.”

Carter, 564 F.3d at 328.

            Accordingly, we affirm Heggins’ conviction, vacate his

sentence, and remand for resentencing consistent with Simmons.

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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