                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4762


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

XAVIER ANTWONE BLACKWOOD,

                Defendant - Appellant.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 09-11213)


Submitted:   September 22, 2011           Decided:   October 11, 2011


Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished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


Louis C. Allen, III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant.    Terry Michael Meinecke, Assistant
United   States  Attorney,  Greensboro,  North  Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Xavier       Antwone    Blackwood         pled    guilty       pursuant    to    a

written plea agreement to maintaining a drug-involved premises,

21 U.S.C. § 856(a)(1), (b) (2006), and possession of a firearm

after having previously been convicted of a crime punishable by

imprisonment        for     a    term    exceeding            one    year,     18      U.S.C.

§§ 922(g)(1),       924(a)(2)        (2006).            The    Government        filed       an

Information    of     Prior     Conviction        pursuant      to     21    U.S.C.    §   851

(2006), stating that Blackwood committed the subject offenses

after a prior state felony drug conviction for possession with

intent to sell and deliver cocaine (two counts) became final.

Blackwood was sentenced to eighty-five months’ imprisonment.                                 On

appeal, counsel filed a brief pursuant to Anders v. California,

386   U.S.    738     (1967),       stating       in    his     view    there       were     no

meritorious     issues       for    appeal,       but    questioning          whether      the

district court erred in finding Blackwood’s prior North Carolina

drug conviction for which Blackwood received a sentence of six

to eight months “a crime punishable by imprisonment for a term

exceeding    one     year”      under   18    U.S.C.      §     922(g).        This     court

affirmed     the    district        court’s       judgment.          United     States       v.

Blackwood, No. 09-4762, 2010 WL 707682 (4th Cir. Mar. 2, 2010)

(unpublished).

             On October 4, 2010, the Supreme Court of the United

States granted Blackwood’s petition for a writ of certiorari,

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vacated this court’s judgment and remanded the case for further

consideration in light of Carachuri-Rosendo v. Holder, 560 U.S.

__, 130 S. Ct. 2577 (2010).                     On March 23, 2011, the appeal was

placed in abeyance for United States v. Simmons, 649 F.3d 237,

2011    WL     3607266      (4th      Cir.      Aug.    17,    2011)     (en    banc).         On

September 16, 2011, Blackwood filed a joint motion to remand for

resentencing         in   light       of     Simmons.          We      affirm    Blackwood’s

conviction for maintaining a drug-involved premises, vacate the

§ 922(g)      conviction        and    sentence        and     remand    to     the    district

court    for    reconsideration            of    the    conviction       and     sentence      in

light of Carachuri-Rosendo and Simmons.

               In   Simmons,       this      court     held     that    a   North      Carolina

offense may not be classified as a felony based upon the maximum

aggravated sentence that could be imposed upon a repeat offender

if     the    individual        defendant        was     not    eligible        for    such    a

sentence.       See Simmons, 2011 WL 3607266, at *3, *7-*8.                               Under

N.C.     Gen.       Stat.       § 15A-1340.17(c)-(d),               assuming          counsel’s

assertions in his Anders brief are correct, the most Blackwood

faced    at    sentencing       was     eight        months.     Thus,      under      Simmons,

Blackwood’s         May   22,    2006      conviction         should    not     have    been    a

predicate felony for the § 922(g) conviction because it was not

punishable by a sentence exceeding a year.

               In accordance with Anders, we have reviewed the record

in this case and have found no other meritorious issues for

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appeal.    We therefore affirm Blackwood’s conviction and sentence

for    maintaining      a    drug-involved            premises,      vacate       Blackwood’s

conviction and sentence for being a felon in possession of a

firearm    and    remand      with       directions         that    the    district       court

consider   the    conviction         and    sentence         in    light    of    Carachuri-

Rosendo    and    Simmons          and    that       the    court        should    make     the

determination in the first instance as to whether the predicate

conviction is a felony or misdemeanor and that the conviction

should be reimposed if the predicate conviction is determined to

be a felony.       We deny as moot the joint motion to remand for

resentencing.           This        court       requires          that    counsel        inform

Blackwood,   in    writing,         of    the       right   to     petition      the   Supreme

Court of the United States for further review.                                If Blackwood

requests that a petition be filed, but counsel believes that

such a petition would be frivolous, then counsel may move in

this court for leave to withdraw from representation.                              Counsel’s

motion must state that a copy thereof was served on Blackwood.

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.



                                                                         AFFIRMED IN PART,
                                                                          VACATED IN PART,
                                                                              AND REMANDED



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