                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4639


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

SANDAKO MESHAWN BRANDON,

                Defendant – Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 10-5706)


Submitted:   September 29, 2011           Decided:   October 5, 2011


Before TRAXLER, Chief Judge,      WILKINSON,   Circuit   Judge,   and
HAMILTON, Senior Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Christopher R. Clifton, GRACE, TISDALE & CLIFTON, P.A., Winston-
Salem, North Carolina, for Appellant.       Anna Mills Wagoner,
United States Attorney, Sandra J. Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                A jury convicted Sandako Meshawn Brandon of conspiracy

to    distribute       cocaine    base,     in     violation    of    21     U.S.C.    § 846

(2006), and distribution of cocaine base, in violation of 21

U.S.C.A. § 841(a)(1), (b)(1)(A) (West 1999 & Supp. 2011).                                  We

affirmed the district court’s 240-month sentence on the basis of

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

States     v.    Brandon,      376   F.    App’x       343   (4th   Cir.     2010).       The

Supreme    Court       vacated    our     opinion      and   remanded      the    case   for

further consideration in light of Carachuri-Rosendo v. Holder,

130 S. Ct. 2577 (2010).                 Brandon v. United States, 131 S. Ct.

508    (2010).         We     vacate      Brandon’s      sentence      and    remand     for

resentencing.

                Brandon     argues      that     the    district      court      improperly

sentenced him as a career offender because the prior controlled

substance offense on which that classification was based was not

punishable by more than one year of imprisonment under North

Carolina law. 1        See N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2007). 2

When Brandon raised this argument in the district court, it was

foreclosed        by    our      decision        in    Harp,    406     F.3d      at     242.

       1
       Brandon does not dispute that he has been convicted of a
predicate crime of violence.
       2
       The statute subsequently was amended, but the amendments
do not apply to Brandon.



                                               2
Subsequently,        however,    we   overruled      Harp   with    our    en   banc

decision in United States v. Simmons, 649 F.3d 237 (4th Cir.

2011)       (en   banc),    in   which   the   defendant      raised      the   same

argument.         In view of Simmons, we vacate Brandon’s sentence and

remand the case to the district court for resentencing. 3

               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




        3
       Because Brandon is entitled to resentencing under Simmons,
we decline to address his additional argument that he is
entitled   to   resentencing   to  eliminate   the   crack/powder
sentencing disparity.



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