                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4316


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ERIC ROCHAT SPANGER,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:10-cr-00021-RJC-1)


Submitted:   November 29, 2011            Decided:   December 15, 2011


Before KING, KEENAN, and DIAZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


John J. Cacheris, LAW OFFICE OF JOHN J. CACHERIS, P.C.,
Charlotte, North Carolina, for Appellant.    Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Eric        Rochat     Spanger      appeals         his    180-month            sentence

following    his       guilty      plea    to     one      count      of    possession         of   a

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

§ 922(g)(1) (2006).           On appeal, Spanger argues that the district

court   erred      in     sentencing        him     as     an    armed      career          criminal

because the prior convictions on which that status was based —

Spanger’s four North Carolina state convictions for breaking and

entering     —     were      not    punishable           by     imprisonment           for     terms

exceeding one year.              Following the filing of Spanger’s opening

appellate brief, the Government filed an unopposed motion to

remand this case for resentencing in light of United States v.

Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).                                       We affirm

Spanger’s        conviction,       vacate       his        sentence,        and       remand     for

resentencing.

            A     defendant        is   properly         designated         an    armed       career

criminal if he is subject to the enhanced sentence under the

provisions       of     18   U.S.C.       § 924(e)         (2006).          U.S.       Sentencing

Guidelines       Manual      § 4B1.4(a)         (2010).          The       enhanced         sentence

under 18 U.S.C. § 924(e) applies to a defendant who violates

18 U.S.C. § 922(g) and has “three previous convictions . . . for

a violent felony or a serious drug offense, or both.”                                   18 U.S.C.

§ 924(e)(1).           To qualify as a “violent felony,” the conviction



                                                2
at     issue    must        be     “punishable         by    imprisonment          for        a     term

exceeding one year.”               Id. § 924(e)(2)(B).

               Spanger argues that his prior state convictions for

breaking       and      entering        were        not      punishable           by     terms        of

imprisonment         exceeding          one     year.            See       N.C.        Gen.       Stat.

§ 15A-1340.17(c)-(d) (2009) (setting forth minimum and maximum

sentences       applicable           under      the         North      Carolina         Structured

Sentencing       Act).           When   Spanger        raised       this     argument          in    the

district       court,       it   was    foreclosed          by   our    panel      decisions          in

United    States       v.    Simmons,       635       F.3d    140,     146   (4th Cir.            2011)

(holding that, to determine whether a North Carolina conviction

for a crime is punishable by a prison term exceeding one year, a

court is to “consider the maximum aggravated sentence that could

be   imposed     for        that    crime     upon      a    defendant       with        the      worst

possible       criminal          history”       (internal           quotation           marks        and

emphasis omitted)), and United States v. Harp, 406 F.3d 242, 246

(4th    Cir.     2005)       (same).          The      en    banc      decision        in     Simmons

reversed this precedent, holding that a prior North Carolina

offense is punishable by imprisonment for a term exceeding one

year only if the particular defendant is eligible for such a

sentence       under    the        applicable         statutory        scheme,         taking       into

account    his    criminal          history     and       the    nature      of    his      offense.

Simmons, 649 F.3d at 241-47.



                                                  3
            Applying     the    en     banc     decision       in   Simmons      here,     we

conclude after review of the state judgment that Spanger’s prior

North   Carolina      convictions       were     not     punishable        by    terms     of

imprisonment     exceeding      one    year.       The      offenses     were      class    H

felonies.    N.C. Gen. Stat. § 14-54(a) (2009).                     Additionally, the

state   judgment      reveals    that      Spanger       had     eight     prior      record

points — resulting in a prior record level of III — and that

Spanger was sentenced in the presumptive range.                         Under the North

Carolina Structured Sentencing Act, Spanger could not have been

imprisoned      for     terms    exceeding         one      year     for        his    prior

convictions.           N.C.     Gen.       Stat.       §§    15A-1340.14(c)(3),             -

1340.17(c)-(d)        (2009).        The    convictions          were    therefore       not

proper predicate convictions for purposes of 18 U.S.C. § 924(e).

            Accordingly, we grant the Government’s motion, vacate

Spanger’s sentence, and remand the case to the district court

for resentencing.        Spanger does not challenge his conviction on

appeal,   and   we     therefore      affirm     it.        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




                                            4
