                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4534


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ARTHUR JERMAIN SIMMONS, a/k/a Melvin Davis, a/k/a Arthur
Germain Simmons, a/k/a Arthur Germaine Simmons, a/k/a Arther
Simmons, a/k/a Arthur German Simmons, a/k/a Arthur Jermaine
Simmons,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Patrick Michael Duffy, Senior
District Judge. (2:08-cr-00688-PMD-1)


Submitted:   February 7, 2011             Decided:   March 17, 2011


Before NIEMEYER, MOTZ, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Stephanie A. Gallagher, LEVIN & GALLAGHER LLC, Baltimore,
Maryland, for Appellant.     William N. Nettles, United States
Attorney, Sean Kittrell, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Arthur     Jermain        Simmons    pled      guilty       to     armed    bank

robbery    (Count       2),    in    violation     of    18       U.S.C.    § 2113(a),        (d)

(2006), using and carrying a firearm during and in relation to a

crime of violence (Count 3), in violation of 18 U.S.C. § 924(c)

(2006), and possession of a firearm and ammunition by a felon

(Count 4), in violation of 18 U.S.C. § 922(g)(1) (2006).                                      The

district       court    sentenced         Simmons       as    a     career      offender      to

concurrent terms of 202 months and 120 months on Counts 2 and 4,

respectively,       and       a     consecutive     60-month         term       on    Count    3,

totaling 262 months’ imprisonment.

               On appeal, counsel contends that the district court

erred     in    finding           that   Simmons’s       convictions            under     South

Carolina’s blue light statute were crimes of violence for career

offender purposes.            Counsel also asserts that the district court

erred in alternatively finding that Simmons is a de facto career

offender.       In light of this court’s decision in United States v.

Rivers, 595 F.3d 558 (4th Cir. 2010), the Government concedes

that    Simmons’s       South       Carolina   convictions           are    not      crimes    of

violence.        However,         the    Government      argues      that       the    district

court did not plainly err in alternatively finding that Simmons

is a de facto career offender.                      The Government also contends

that     the      facts       surrounding          the        convictions,            Simmons’s



                                               2
recidivism, and his thirty-three criminal history points support

an upward departure.

             Appellate review of a district court’s imposition of a

sentence,        “whether        inside,        just     outside,      or     significantly

outside the Guidelines range,” is for abuse of discretion.                               Gall

v. United States, 552 U.S. 38, 41 (2007).                           This review requires

consideration         of      both        the         procedural       and         substantive

reasonableness        of     a     sentence.            Id.    at     51.         “Procedural

reasonableness        evaluates           the        method    used    to     determine     a

defendant’s sentence.”               United States v. Mendoza-Mendoza, 597

F.3d 212, 216 (4th Cir. 2010).                       This court must assess whether

the district court properly calculated the advisory Guidelines

range,     considered        the     18    U.S.C.        § 3553(a)        (2006)      factors,

analyzed        any      arguments        presented           by    the      parties,     and

sufficiently explained the selected sentence.                          Gall, 552 U.S. at

49-50; see also United States v. Lynn, 592 F.3d 572, 576 (4th

Cir.     2010)    (“[A]n     individualized             explanation         must    accompany

every sentence.”); United States v. Carter, 564 F.3d 325, 330

(4th     Cir.     2009).     “Substantive              reasonableness        examines     the

totality    of     the     circumstances         to     see    whether      the    sentencing

court abused its discretion in concluding that the sentence it

chose satisfied the standards set forth in § 3553(a).”                               Mendoza-

Mendoza, 597 F.3d at 216



                                                 3
               Because counsel preserved her procedural challenge to

the    sentence      by   objecting         to       Simmons’s    classification           as    a

career      offender,         this   court’s          review     is    for    an     abuse      of

discretion.       See Lynn, 592 F.3d at 581, 583-84.                         If the district

court procedurally erred and, thus, abused its discretion, this

court must reverse unless the error is harmless.                                Id. at 581,

585.

               In Rivers, decided after the district court imposed

sentence      upon    Simmons,       this    court       determined       that      “under      no

circumstance         is   a    violation         of   South    Carolina’s          blue    light

statute a violent felony.”                  595 F.3d at 560.              Since Simmons’s

South Carolina convictions can no longer be considered predicate

offenses under the career offender guideline provision, and he

has    no   other     qualifying      convictions,         Simmons       is    no    longer     a

career offender under U.S. Sentencing Guidelines Manual (USSG)

§ 4B1.1       (2008).         Therefore,     the       district       court     procedurally

erred in finding that § 4B1.1 applied.

               The Government argues, however, that there is no error

because the district court alternatively found that Simmons is a

de facto career offender.              The district court’s finding to this

effect      conflicts         with   circuit          precedent.         “For       an    upward

departure to de facto career offender status to be permissible,

‘the defendant has to have been convicted of two prior crimes

each     of     which     constitutes            [a     career        offender       predicate

                                                 4
offense.]’”     United States v. Myers, 589 F.3d 117, 126 (4th Cir.

2009)   (alterations      in    original)        (quoting    United     States      v.

Harrison, 58 F.3d 115, 118 (4th Cir. 1995)), cert. denied, 130

S. Ct. 3306 (2010).            Indeed, “[u]nder [the] de facto career

offender    method,   the      district       court   must   conclude       that   the

defendant’s underlying past criminal conduct demonstrates that

the defendant would be sentenced as a career offender but for

the fact that one or both of the prior predicate convictions may

not be counted.”       Harrison, 58 F.3d at 118 (internal quotation

marks omitted).

            Simmons cannot be a de facto career offender because,

after Rivers, none of his prior convictions had the potential to

be counted as predicate offenses under § 4B1.1.                  See id. (“At a

minimum, the defendant has to have been convicted of two prior

crimes each of which constitutes either a crime of violence or a

controlled     substance       offense.”).            Although   there       may    be

alternative bases in the record to support an upward departure

or variance, the district court did not adopt these bases as its

rationale     for   the   sentence    imposed,         and   they     may    not    be

considered by this court.         See Carter, 564 F.3d at 329-30 (“[A]n

appellate court may not guess at the district court’s rationale,

searching the record for statements by the Government or defense

counsel or for any other clues that might explain a sentence.”).



                                          5
              Accordingly,     we   vacate   the   sentence    and   remand     for

resentencing in light of our holding.               We, of course, indicate

no   view   as   to    the    appropriate    sentence   to    be   imposed     upon

Simmons, leaving that determination, in the first instance, to

the district court.           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




                                        6
