                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-5242


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LEE THOMPSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00135-RJC-1)


Submitted:   June 23, 2011                 Decided:   August 24, 2011


Before DAVIS, KEENAN, and DIAZ, Circuit Judges.


Vacated in part, affirmed in part, and remanded by unpublished
per curiam opinion.


Claire J. Rauscher, Executive Director, Ann L. Hester, Rahwa
Gebre-Egziabher, Assistant Federal Defenders, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., for Appellant.           Anne M.
Tompkins, United States Attorney, Charlotte, North Carolina, Amy
E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Lee Thompson appeals the 60-month sentence imposed after he

pleaded guilty to one count of unlawful possession or transport

of a firearm by a convicted felon in violation of 18 U.S.C. §

922(g)(1).     Thompson contends that the district court erred when

it sentenced him at offense level 21, instead of offense level

17, based on its conclusion that Thompson had two prior felony

convictions     for    controlled      substances     offenses     that   triggered

the higher offense level under U.S.S.G. § 2K2.1(a)(2).                        In light

of our recent precedent in United States v. Simmons, __ F.3d __

(4th Cir. 2011) (en banc), we agree with Thompson that one of

the     two   prior    convictions      does    not     qualify     as    a     felony

conviction     and,     accordingly,     we    vacate    the    district       court’s

judgment and remand for resentencing.

      Thompson     also    appeals      the    district        court’s    order     to

reimburse the United States $500 for court-appointed attorney’s

fees.     Thompson did not object at sentencing but now contends

the district court plainly erred by issuing the reimbursement

order    without      having   found    sufficient      evidence    demonstrating

that he has the ability to pay.                 Finding no plain error, we

affirm.




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                                                 I.

      We first address Thompson’s claim that the district court

erred    in    imposing          a    60-month       sentence.            At    sentencing,            the

district court determined that Thompson’s offense level was 21,

setting      the     Guidelines         range    at       57    to   71    months.             Thompson

objected      to     this       determination         because        one       of    the    predicate

offenses       used        to        calculate       the        offense         level          under     §

2K2.1(a)(2),         a    2004       North    Carolina         conviction           for    selling       a

counterfeit         controlled          substance,             did   not        actually         expose

Thompson to more than one year imprisonment.

        Following        the     precedent       established          by       United      States       v.

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

195   F.3d     205       (4th    Cir.       1999),    the      sentencing           judge      rejected

Thompson’s argument and found that Thompson’s prior conviction

could    be    used       to     enhance       his    sentence        because            the    maximum

aggravated         sentence          that    could     be       imposed        for    the       offense

exceeded one year.                   The court then imposed a sentence of 60

months’       imprisonment            followed       by    three      years         of     supervised

release.       Thompson objected to the sentence and timely appealed.

        We review a sentence imposed by the district court under an

abuse-of-discretion standard.                    Gall v. United States, 552 U.S.

38, 51 (2007).             We “must first ensure that the district court

committed no significant procedural error, such as failing to



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calculate      (or       improperly          calculating)               the     Guidelines        range.”

Id.

       Thompson’s          North        Carolina              conviction             of     selling    a

counterfeit controlled substance is designated a Class I felony,

which    is        punishable           by        a        sentence          exceeding       one    year

imprisonment, but only if the defendant’s prior record level at

the time of the conviction is V or higher.                                      N.C. Gen. Stat. §§

90-95(a)(2),             15A-1340.17(c)                &      (d).               The        Presentence

Investigation Report shows that Thompson’s convictions prior to

his sentencing for the 2004 North Carolina conviction would have

placed him at a prior record level IV.

       Our    recent       decision          in       Simmons          requires      that    we    vacate

Thompson’s      sentence.              In    Simmons,             we    considered        the     precise

question      of        whether        a         defendant’s             North       Carolina       prior

conviction         was     for     an        “    ‘offense             that     is     punishable      by

imprisonment        for     more       than        one       year.’ ”            United      States    v.

Simmons,      --     F.3d        --,       slip        op.4.            We    rejected       the     rule

established        in     Harp     and       Jones          that        looked       to   the     maximum

aggravated sentence authorized for a particular class of felony

to determine whether the offense is punishable by a term of

imprisonment exceeding one year.

       We reasoned that--following recent Supreme Court precedent

in    Carachuri-Rosendo           v.       Holder,          130    S.     Ct.    2577     (2010),     and

United States v. Rodriquez, 533 U.S. 377 (2008)--Harp and Jones

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no longer remained good law.                     We held that, under the North

Carolina Structured Sentencing Act, a defendant is convicted of

a crime “punishable” by more than a year’s imprisonment only if

some     offender    possessing        the       same    prior          record   level    and

convicted of similar aggravating factors could have received a

sentence exceeding one year.              Id. (slip op. 14-19).

       Applying the Simmons holding here, we find that Thompson’s

2004   conviction        does    not     qualify        as    a     “felony      conviction”

because it was not “punishable . . . for a term exceeding one

year,” U.S.S.G. § 2K2.1 cmt. n.1; an offender possessing the

same prior record level and convicted of similar aggravating

factors could not have received a sentence exceeding one year.

In light of Simmons, Thompson’s advisory Guidelines sentence was

improperly       calculated;      thus,      we   vacate          the    district   court’s

sentence and remand for resentencing.



                                           II.

       We next review Thompson’s objection to the district court’s

reimbursement order.            Because Thompson failed to object to the

order, we apply the plain error standard of review.                                     United

States    v.    Branch,    537    F.3d    328,     343       (4th       Cir.   2008),    cert.

denied, 129 S. Ct. 943 (2009); Fed. R. Crim. P. 52(b).                                     To

warrant relief, Thompson must show that there was an “error”

that   is      “plain”    or    obvious    and     that       “affect[s]         substantial

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rights.”        United States v. Olano, 507 U.S. 725, 732 (1993).

Additionally, we can decline to correct the error unless we find

that it “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.”                 Id. at 736 (quoting United

States     v.    Atkinson,        297    U.S.     157,        160   (1936))     (internal

quotations marks omitted).

      Before a district court may order reimbursement of court-

appointed counsel fees, it must “find[] that funds are available

for   payment      from      or     on     behalf        of     a     person    furnished

representation.”      18 U.S.C. § 3006A(f).                   An explicit finding on

the record that the defendant has the ability to pay is not

required, and we may uphold reimbursement orders even if the

sentencing court did not make a specific finding on availability

of funds as long as there is sufficient evidence to support the

court’s    decision    and    the        defendant       did    not    object    to   that

evidence.       See United States v. Behnezhad, 907 F.2d 896, 900

(9th Cir. 1990); United States v. Gurtunca, 836 F.2d 283, 288

(7th Cir. 1987).

      We find sufficient evidence in the record to support the

district    court’s   reimbursement             order.         Thompson’s      history   of

prior work and the district court’s instruction that Thompson

receive     vocational       training        and     complete          his     GED    while

incarcerated supported the district court’s finding that funds



                                            6
would      be     available       to   reimburse      Thompson’s          court-appointed

counsel fees.

      The district court’s order also made clear that if Thompson

could not make reimbursement immediately, he could make payments

through the Inmate Financial Responsibility Program.                               Finally,

if   any        balance     remained     following         Thompson’s         release     from

prison, the Court directed Thompson to make a minimum payment of

$50 per month while on supervised release, but permitted the

schedule         to    be     modified        based        on     Thompson’s          economic

circumstances.          Based on this record, the district court did not

plainly err in ordering the reimbursement for court-appointed

attorney’s fees.

      Even assuming error, Thompson has not shown that the error

affected        his   “substantial       rights.”          In    most    cases,    an    error

affecting substantial rights means the error was prejudicial, or

it   affected         the   outcome     of    the   district          court    proceedings.

Olano, 507 U.S. at 734.                The defendant also bears the burden of

persuasion with respect to prejudice.                           Id.     Thompson has not

shown      that       he    was    prejudiced         by        the     district      court’s

reimbursement order.              As we have already noted, payments while

Thompson        is    imprisoned       will   be    in     accord       with    the     Inmate

Financial        Responsibility         Program,      and,       upon    his    release,     a

probation officer will monitor Thompson’s economic circumstances

and recommend changes if warranted.                      Finally, if the Government

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attempts       to    revoke    his    supervised       release   for    non-payment,

Thompson may assert lack of funds as a defense.                        See Gurtunca,

836 F.2d at 289.              Accordingly, we affirm the district court’s

reimbursement order.

      For      the   foregoing       reasons,     we   (1)   vacate    the   district

court’s imposition of a 60-month term of imprisonment and remand

for     resentencing,          and    (2)     affirm     the     district     court’s

reimbursement order.            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 IN PART,
                                                                 AFFIRMED IN PART,
                                                                      AND REMANDED




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