                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4675


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOSE MANUEL GONZALEZ-SOSA, a/k/a        Jose Manuel Gonzales,
a/k/a    Sergio  Gonzalez-Lopez,        a/k/a   Juan   Manuel
Gonzalez-Sosa,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:10-cr-00241-NCT-1)


Submitted:   December 16, 2011            Decided:   December 22, 2011


Before GREGORY, DUNCAN, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Louis C. Allen, III, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Angela Hewlett Miller, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Jose Manuel Gonzalez-Sosa pled guilty, pursuant to a

written   plea   agreement,   to    one     count    of     transferring          false

identification      documents,      in      violation         of      18      U.S.C.

§ 1028(a)(2),    (b)(1)(A)(i)      (2006)    (Count       One);    one     count     of

knowingly possessing document-making implements for making false

identification      documents,      in      violation         of      18      U.S.C.

§ 1028(a)(5), (b)(1)(C) (2006) (Count Four); and one count of

illegal reentry after removal as a convicted felon, in violation

of 8 U.S.C. § 1326(a), (b)(1) (2006) (Count Six).

           Gonzalez-Sosa’s presentence report (“PSR”) applied a

sixteen-level      enhancement,      pursuant         to     U.S.        Sentencing

Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A)(ii) (2010), because

he had been deported after conviction for a felony crime of

violence, citing a 2001 conviction in North Carolina state court

of a “Felony Crime Against Nature.”             Based on this enhancement

and the resulting Guidelines range, the district court sentenced

Gonzalez-Sosa to forty-one months’ imprisonment.                    Gonzalez-Sosa

timely appeals.

           On    appeal,   Gonzalez-Sosa’s          brief    raises        only    one

issue, challenging this sixteen-level enhancement in light of

our recent decision in United States v. Simmons, 649 F.3d 237

(4th Cir. 2011) (en banc).            He has also filed an unopposed

motion to vacate his sentence and remand for resentencing in

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light of      Simmons.     Gonzalez-Sosa claims that under Simmons, his

prior conviction for Crime Against Nature does not constitute a

felony.

              Because Gonzalez-Sosa did not object in the district

court to the enhancement, we review the issue for plain error.

See United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007)

(reviewing for plain error where defendant did not object to

district court’s denial of defendant’s allocution).                       At the time

of     sentencing,       the   district        court’s    application          of    the

enhancement was consistent with our decision in United States v.

Harp, 406 F.3d 242 (4th Cir. 2005).               Under North Carolina law, a

defendant convicted of a Class I felony, as was Gonzalez-Sosa,

with    the   worst     possible   history      (prior    record     level     VI)   and

aggravating     sentencing     factors        could    have    received    a   maximum

fifteen        month       sentence.             See          N.C.    Gen.          Stat.

§ 15A-1340.17(c)-(d) (2009).            Thus, under Harp, Gonzalez-Sosa’s

prior Class I felony conviction constituted a crime punishable

by imprisonment for a term exceeding one year.                       See Harp, 406

F.3d    at    246-47.    Accordingly,     at     the    time     Gonzalez-Sosa       was

sentenced, the Crime Against Nature conviction plainly qualified

as a felony conviction for a crime of violence.

              However, in Simmons we overruled Harp, holding that a

North Carolina offense may not be classified as a felony based

upon the maximum aggravated sentence that could be imposed upon

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a repeat offender if the individual defendant was not eligible

for such a sentence.                See Simmons, 649 F.3d at 241, 246-47.

Under Simmons, Gonzalez-Sosa’s Crime Against Nature conviction

was   not        punishable    by   imprisonment    for   a     term   exceeding   one

year.        Even assuming the State sought an aggravated sentence,

which the state court judgment belies, with his prior record

level       of    II,   the    maximum   sentence    Gonzalez-Sosa       could     have

received for his Class I felony was ten months’ imprisonment.

See N.C. Gen. Stat. § 15A-1340.17(c) (longest minimum sentence

for a Class I felony with prior record level II is eight months’

imprisonment); N.C. Gen. Stat. § 15A-1340.17(d) (maximum term of

imprisonment for an eight-month minimum sentence is ten months). 1

                 Accordingly,       we   affirm    Gonzalez-Sosa’s       conviction,

which he does not challenge on appeal.                 We grant Gonzalez-Sosa’s

motion to vacate, vacate his sentence, and remand this case to

the district court for resentencing in light of Simmons. 2                           We

dispense         with   oral     argument    because      the    facts    and    legal




        1
       We of course do not fault the district court for its
reliance upon, and application of, unambiguous circuit authority
at the time of Gonzalez-Sosa’s sentencing.
        2
       Although Gonzalez-Sosa does not raise this issue, it
appears that Simmons will affect the maximum sentence applicable
to his 8 U.S.C. § 1326 conviction. We leave this issue for the
district court to evaluate upon resentencing.



                                            4
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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