                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-5021


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

EDRY VARGAS-VENTURA,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:09-cr-00411-TDS-1)


Submitted:   March 23, 2011                 Decided:   March 31, 2011


Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Louis C. Allen III, Federal Public Defender, Mireille P. Clough,
Assistant   Federal   Public   Defender,  Winston-Salem,   North
Carolina, for Appellant.   Ripley Rand, United States Attorney,
Michael F. Joseph, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Edry     Vargas-Ventura                 appeals       his     twenty-four-month

sentence imposed following his guilty plea to illegal reentry

after removal from the United States, in violation of 8 U.S.C.

§ 1326(a) (2006).          Finding no reversible error, we affirm.

             Vargas-Ventura’s            sole        claim       on    appeal   is     that   the

district     court        erred    in     applying           a     four-level     enhancement

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

§ 2L1.2(b)(1)(D)          (2009),        based       on   its         finding   that    he    was

deported following a felony conviction.                            In the district court,

the probation officer specifically identified two state felony

convictions to support the enhancement – possession of a stolen

motor vehicle and felony hit and run.                            Vargas-Ventura points out

that he received a sentence of only seven to nine months of

imprisonment        for    each     of    these        convictions.             Moreover,      he

contends that he could not have received a sentence of more than

one   year   under        North    Carolina’s          structured         sentencing     scheme

given his criminal record.

             Vargas-Ventura acknowledges that his argument may be

foreclosed by our opinion in United States v. Harp, 406 F.3d

242, 246 (4th Cir. 2005), in which we held that, in determining

whether a conviction is for a crime punishable by a prison term

exceeding one year, a district court must consider the maximum

aggravated sentence that would be imposed for that crime upon a

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defendant with the worst possible criminal history.                                  Vargas-

Ventura requests that we hold his case in abeyance for United

States v. Simmons, __ F.3d __, 2011 WL 546425 (4th Cir.), reh’g

en banc granted (Mar. 18, 2011), a case in which we recently

granted       rehearing       en   banc    and      that    may    provide     us    with   an

opportunity to revisit the holding in Harp.

               In   response,       the     Government           suggests    an     alternate

basis on which to affirm the district court’s judgment.                               Vargas-

Ventura was also convicted of misdemeanor driving while impaired

under state law and received a sentence of twenty-four months of

imprisonment.        This conviction meets the definition of “felony”

for purposes of USSG § 2L1.2(b)(1)(D).                           See USSG § 2L1.2, cmt.

n.2 (“For purposes of subsection . . . (D), ‘felony’ means any

federal, state, or local offense punishable by imprisonment for

a term exceeding one year.”); cf. Burgess v. United States, 553

U.S. 124, 126 (2008) (holding that a “felony drug offense” is

“an offense punishable by more than one year,” as defined in 21

U.S.C.    §    802(44)    (2006),         regardless        of    whether    the    state   of

conviction classified the particular offense as a misdemeanor or

felony);      Wireko     v.    Reno,      211    F.3d      833,   835   (4th      Cir.   2000)

(“Under the plain language of [the statute defining aggravated

felony], there is no requirement that the offense actually have

been a felony, as that term is conventionally understood.”).



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             There is clearly a basis to support the four-level

enhancement      imposed    by        the   district      court;      accordingly,     we

affirm the criminal judgment.                 See United States v. McHan, 386

F.3d 620, 623 (4th Cir. 2004) (recognizing we are entitled to

affirm on any ground supported by the record, including theories

not relied upon by the district court).                      Because we uphold the

enhancement      based     on    a     prior      North     Carolina     “misdemeanor”

conviction      for   driving         while       impaired     on     which     defendant

received   24    months     of       imprisonment,     we    deny     Vargas-Ventura’s

motion to hold this case in abeyance for Simmons.                             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




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