                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4983


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

KEVIN DEVON MCCORMICK,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00263-WO-1)


Submitted:   October 27, 2011             Decided:   November 17, 2011


Before KING, AGEE, and KEENAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


David Bruce Freedman, CRUMPLER, FREEDMAN, PARKER & WITT,
Winston-Salem, North Carolina, for Appellant. Ripley Rand,
United States Attorney, Anand P. Ramaswamy, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Kevin       Devon    McCormick         pled      guilty     pursuant        to    a

written plea agreement to one count of distribution of crack

cocaine,    in      violation         of     21    U.S.C.     §     841(a)(1)          (2006).

Following    the    entry       of    his     guilty    plea,      McCormick      moved      to

withdraw it.         The district court denied that motion after a

hearing.

            The     district         court    sentenced      McCormick       as    a    career

offender, pursuant to U.S. Sentencing Guidelines Manual (“USSG”)

§ 4B1.1 (2009).         At sentencing, McCormick lodged an objection to

his designation as a career offender, arguing that he could not

have   received     a   sentence        in    excess    of    one     year   for       certain

predicate offenses because of the class of the state offenses

and his prior record level.                   However, McCormick noted that his

argument failed under United States v. Harp, 406 F.3d 242 (4th

Cir. 2005).       The district court denied McCormick’s objection and

sentenced him to 270 months’ imprisonment.

            McCormick        timely          appealed        the    district           court’s

conviction and sentence.               Following the issuance of this court’s

decision in United States v. Simmons, 649 F.3d 237 (4th Cir.

2011) (en banc), McCormick filed an unopposed motion to vacate

his sentence and remand to the district court for resentencing.

This course of action was recommended as well by the Government

in   its   brief.       We   affirm          McCormick’s      conviction,         grant      his

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motion to vacate his sentence, and remand to the district court

for resentencing in light of Simmons.

            McCormick’s sole challenge to his conviction is that

the district court erred in denying his motion to withdraw his

guilty   plea.      This        court       reviews    for      abuse    of    discretion      a

district court’s denial of a motion to withdraw a guilty plea.

United States v. Dyess, 478 F.3d 224, 237 (4th Cir. 2007).                                     A

defendant seeking to withdraw his guilty plea bears the burden

of demonstrating that withdrawal should be granted.                                   Id.     In

deciding whether to permit withdrawal, a district court should

consider: (1) whether defendant offers credible evidence that

his plea was involuntary; (2) whether the defendant credibly

asserts his legal innocence; (3) the extent of a delay between

entry of the plea and filing of the motion; (4) “whether the

defendant    has    had    close        assistance        of    counsel;”       (5)    whether

withdrawal    of     the        plea     will       prejudice      the        government      or

(6) waste judicial resources.                   United States v. Ubakanma, 215

F.3d 421, 424 (4th Cir. 2000).                        Our thorough review of the

record   leads     us     to    conclude        that      the    district       court       fully

assessed    these    factors          and    did    not    abuse    its       discretion      in

denying McCormick’s motion to withdraw his guilty plea.

            McCormick          next    challenges         his   sentence.         He    claims

that the predicate offenses used to designate him as a career

offender, pursuant to USSG § 4B1.1, were not punishable by a

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term exceeding one year.        A defendant is a career offender under

the Guidelines if he was at least eighteen when he committed the

instant offense, that offense is a felony crime of violence or

controlled substance offense, and “the defendant has at least

two prior felony convictions of either a crime of violence or a

controlled    substance     offense.”        USSG    § 4B1.1(a).      A   “prior

felony conviction” must, among other requirements, be punishable

for a term exceeding one year.          USSG § 4B1.2 cmt. n.1.

             McCormick      contends        that     his    career     offender

designation was improperly predicated upon multiple prior North

Carolina convictions that were not punishable by more than one

year of imprisonment.         When McCormick raised this argument in

the district court, it was foreclosed by our decision in Harp,

406   F.3d    at   246-47   (holding     that      “to   determine   whether   a

conviction is for a crime punishable by a prison term exceeding

one year,” the court should consider “the maximum aggravated

sentence that could be imposed for that crime upon a defendant

with the worst possible criminal history” and not the maximum

sentence that could be imposed on the actual defendant being

sentenced (emphasis omitted)).              Recently, however, this court

overruled Harp with our en banc decision in Simmons, 649 F.3d at

249-50 (holding that consideration of hypothetical aggravating

factors and criminal history is inappropriate when determining

whether a prior offense constitutes a felony).

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            In    light   of    Simmons,     McCormick’s      challenge     to   his

enhanced    sentencing     as    a    career    offender      warrants      further

consideration.       We   cannot      determine      from   the   current    record

whether    the   underlying      North   Carolina      convictions     supporting

McCormick’s designation as a career offender constitute prior

felony convictions.        That determination should be made by the

district    court    after      supplementing        the    record    as    needed.

Accordingly, we grant McCormick’s motion to vacate his sentence

and remand to the district court for resentencing consistent

with Simmons. 1

            Based    on    the       foregoing,      we     affirm    McCormick’s

conviction,      vacate   his   sentence,      and   remand    to    the   district

court for further proceedings. 2             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




     1
       We of course do not fault the Government or the district
court for relying upon unambiguous circuit authority at the time
of McCormick’s conviction.
     2
       In view of this disposition, we find it unnecessary to
consider McCormick’s Fair Sentencing Act claim.



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