                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 10-5065


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHADNEY STANBACK,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield.     Irene C. Berger,
District Judge. (1:10-cr-00013-1)


Submitted:   September 15, 2011          Decided:   September 27, 2011


Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Lex A. Coleman, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant.      R. Booth
Goodwin II, United States Attorney, Miller Bushong, Assistant
United States Attorney, Beckley, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Chadney Stanback appeals his ninety-six month sentence

for possession with intent to distribute a quantity of cocaine

base in violation of 21 U.S.C. § 841(a)(1) (2006).                        Stanback

argues that his sentence was procedurally unreasonable because

the district court erred in calculating his Guidelines sentence

by finding that he was a career offender under U.S. Sentencing

Guidelines Manual (“USSG”) § 4B1.1(a) (2009).                       A sentence is

procedurally        unreasonable     if   the      district    court    improperly

calculated        the   offender’s     Guidelines     range    of    imprisonment.

United States v. Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010).

             Stanback claims that he was not a career offender for

purposes of USSG § 4B1.1(a) because he did not possess two prior

felony convictions of either a crime of violence or a controlled

substance offense.            Predicate convictions for career offender

status only encompass offenses punishable by imprisonment for a

term exceeding one year.            USSG § 4B1.2(a), (b).        Stanback claims

that   the    district      court    erred    in    treating    his    2009   North

Carolina state conviction for possession with intent to sell

cocaine as a predicate conviction.

             We    conclude    that,    under   North   Carolina’s      structured

sentencing regime and in light of Stanback’s criminal history,

he could not have received a custodial sentence of more than one

year for his 2009 cocaine offense.                  When Stanback raised this

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argument   in   the   district    court,      it    was   foreclosed   by     our

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

Subsequently,    however,   we    overruled        Harp   with   our   en   banc

decision   in   United   States   v.   Simmons,      __   F.3d   __,   2011    WL

3607266 (4th Cir. Aug. 17, 2011) (en banc).                  Pursuant to the

dictates of Simmons, we sustain Stanback’s objection here.

           Accordingly, the district court’s judgment is affirmed

as to the conviction, vacated as to the sentence, and the case

is remanded for resentencing.              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 in

the decisional process.

                                                            AFFIRMED IN PART,
                                                             VACATED IN PART,
                                                                 AND REMANDED




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