                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 10-4916


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ROBERT A. GARMON,

                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-00164-RJC-1)


Submitted:   September 19, 2011            Decided:   October 12, 2011


Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Emily Marroquin, Ross H.
Richardson,   Assistant  Federal   Defenders,  Charlotte,  North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

         Robert A. Garmon pled guilty to being in possession of

a firearm after “having been previously convicted of, [sic] one

or more crimes punishable by imprisonment for a term exceeding

one year,” in violation of 18 U.S.C. § 922(g)(1) (2006).                     Garmon

pled guilty without the benefit of a plea agreement.                     However,

prior to the district court’s acceptance of his guilty plea,

Garmon filed what the district court construed as a motion to

dismiss the indictment.          Garmon argued that, under Carachuri v.

Rosendo v. Holder, 130 S. Ct. 2577 (2010), none of his prior

convictions    were     “punishable”       by    a      term   of    imprisonment

exceeding one year based on his prior record level.                          It is

undisputed    that    all   of    Garmon’s      prior    offenses     were    North

Carolina convictions and were class H felonies.                     For the first

two offenses, conspiracy to commit breaking and entering and

larceny and possession of a stolen automobile, his prior record

level was I.         For his third offense, attempted larceny, his

prior record level was II.            Garmon was not sentenced in the

aggravated range.       Therefore, Garmon faced a maximum sentence of

six months for the first two offenses and eight months for the

third offense.       N.C. Gen. Stat. § 15A-1340.17(c), (d) (2009).

         The district court denied Garmon’s motion to dismiss,

but agreed to the parties’ stipulation that Garmon’s guilty plea

was subject to the condition that he could appeal any decision

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made regarding his predicate offenses.        The district court then

accepted Garmon’s conditional guilty plea, and sentenced him to

twenty-one months in prison.     Garmon appealed.         We reverse his

conviction and remand for further proceedings.

           On appeal, Garmon argues that although he has three

prior North Carolina convictions, for none of them could he have

received   a   sentence   exceeding   one     year   of    imprisonment.

Therefore, he contends, the district court erred in denying his

motion to dismiss the indictment.     In reviewing the denial of a

motion to dismiss an indictment, we review the district court’s

factual findings for clear error and its legal conclusions de

novo.    United States v. Woolfolk, 399 F.3d 590, 594 (4th Cir.

2005).

           Under 18 U.S.C. § 922(g), it is unlawful for one

previously convicted of a felony to “possess in or affecting

commerce, any firearm or ammunition.”       The provision defines a

felony as a conviction “in any court of, [sic] a crime

punishable by imprisonment for a term exceeding one year.”         18

U.S.C. § 922(g).   At the time the district court denied Garmon's

motion to dismiss, his argument that he had no prior felony

convictions in the district court was foreclosed by our decision

in United States v. Harp, 406 F.3d 242, 246-47 (4th Cir. 2005).

Subsequently, however, this court has overruled Harp in our en



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

2011).

            In    view   of   our    holding   in     Simmons,    we    agree    with

Garmon that his three prior state convictions, for which he

faced a maximum of either six months (first two convictions) or

eight months (third conviction), are not felonies as defined in

§ 922(g).      Accordingly, we reverse the district court’s judgment

and   remand     the   case   to    the   district     court     for    proceedings

consistent with this opinion.*             In light of our disposition, we

deny Garmon’s motion to vacate and remand as moot.                      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.                      The clerk is

directed to issue the mandate forthwith.



                                                         REVERSED AND REMANDED




      *
       We of course do not fault the Government or the district
court for relying upon unambiguous circuit authority at the time
of Garmon's conviction.


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