                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4732


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHRISTIAN MANUEL LOPEZ-PEREZ, a/k/a Jose Manuel Lopez,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00103-WO-1)


Submitted:   December 20, 2011            Decided:   January 3, 2012


Before KING, AGEE, and DIAZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Raymond J. Rigat, Washington, D.C., for Appellant.       Angela
Hewlett Miller, Assistant United States Attorney, Arnold L.
Husser, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Christian Manuel Lopez-Perez appeals his twenty-seven-

month     sentence         following       a   guilty        plea    to    reentry     after

deportation for a felony, in violation of 8 U.S.C. § 1326(a),

(b)(1) (2006).         On appeal, Lopez-Perez argues that the district

court    erred    in     applying      a   four-level         sentencing      enhancement,

pursuant     to    the      U.S.      Sentencing          Guidelines      Manual     (“USSG”)

§ 2L1.2(b)(1)(D) (2010), for being deported after a conviction

for a felony.            Following the filing of Lopez-Perez’s opening

Appellant’s Brief, the Government filed an unopposed motion to

remand for resentencing in light of United States v. Simmons,

649 F.3d 237 (4th Cir. 2011) (en banc).                          We affirm Lopez-Perez’s

conviction, vacate his sentence, and remand for resentencing.

            Section         2L1.2(b)(1)(D)           of    the    Sentencing    Guidelines

Manual    prescribes        a    four-level        offense       enhancement       “[i]f    the

defendant was deported, or unlawfully remained in the United

States,    after       a    conviction         for    any        other    felony.”         USSG

§ 2L1.2(b)(1)(D).               For   purposes       of    subsection      (b)(1)(D),       the

Guidelines Manual defines a felony as “any federal, state, or

local offense punishable by imprisonment for a term exceeding

one year.”       Id. § 2L1.2 cmt. n.2.

            On appeal, Lopez-Perez argues that his North Carolina

state convictions for breaking and entering, larceny following

breaking and entering, and conspiracy to commit breaking and

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entering do not qualify as felonies because his convictions were

not punishable by imprisonment for terms exceeding one year.

Consistent with this court’s decision in United States v. Harp,

406 F.3d 242, 246 (4th Cir. 2005), the district court determined

that     Lopez-Perez               qualified          for     the     four-level          sentencing

enhancement set forth in USSG § 2L1.2(b)(1)(D) based upon his

three prior North Carolina felony convictions.                                      Subsequent to

the district court’s sentencing determination, we overruled Harp

in    our    en     banc      decision           in   Simmons,        finding       that       a    North

Carolina state 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    Lopez-Perez             was    not

eligible       for       a    sentence       exceeding          one    year        for    his      North

Carolina       convictions.                Accordingly,            applying    Simmons,            Lopez-

Perez’s      convictions             no     longer          qualify    as     predicate            felony

convictions,         and       he     is    ineligible          for    the     § 2L1.2(B)(1)(D)

sentencing enhancement.

               We    therefore            grant       the    Government’s          motion,         vacate

Lopez-Perez’s         sentence,            and    remand       the    case    to     the       district

court    for      resentencing.              Lopez-Perez            does    not     challenge         his

conviction on appeal, and we therefore affirm it.                                        We dispense

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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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