                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4043


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CORNELIUS KEITH SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
Chief District Judge. (7:10-cr-00076-FL-1)


Submitted:   September 29, 2011           Decided:   October 18, 2011


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


Affirmed in part, vacated in part, and remanded by unpublished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


J. Merritt Wagoner, SULLIVAN & WAGONER LLP, Wilmington, North
Carolina, for Appellant.     Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Cornelius        Keith     Smith         appeals       his    sentence    of       327

months’ imprisonment for possession with intent to distribute

cocaine in violation of 21 U.S.C. § 841(a)(1) (2006) and use and

carry of a firearm during and in relation to, and possession in

furtherance     of,     a     drug   trafficking            crime    in    violation       of    18

U.S.C. § 924(c)(1) (2006).

             Currently          pending          before        this        court      is        the

Government’s         motion    to    vacate          Smith’s      sentence     in    light       of

United    States      v.    Simmons,       649       F.3d   237     (4th    Cir.     2011)      (en

banc),    and    to     remand       the    case       to    the     district       court       for

resentencing.          Smith requests that we grant the Government’s

motion.    We grant the motion.              Smith brought no challenge to his

conviction      in    his     opening      brief.           Accordingly,       the    district

court’s judgment is affirmed as to the conviction, vacated as to

the sentence, and the case is remanded for resentencing.



                                                                           AFFIRMED IN PART,
                                                                            VACATED IN PART,
                                                                                AND REMANDED




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