                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4096


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTHONY THOMAS RHODES,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00159-WO-1)


Submitted:   September 12, 2011          Decided:   September 14, 2011


Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Charles H. Harp, II, CHARLES H. HARP, II, P.C., Lexington, 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Unpublished opinions are not binding precedent in this circuit.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:

               Anthony Thomas Rhodes appeals his 180 month sentence

for    being    a    convicted     felon    in      possession    of   a    firearm    in

violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2006).                               We find

that    Rhodes’s        1999     North     Carolina        breaking    and     entering

conviction      was    not     punishable      by   a   term    exceeding    one    year;

thus, Rhodes lacks the three predicate violent felony or serious

drug convictions necessary to trigger the fifteen year mandatory

minimum sentence prescribed by 18 U.S.C. § 924(e).

               Under North Carolina’s structured sentencing regime,

Rhodes could not have received a custodial sentence of more than

one    year    for    his    breaking    and     entering      conviction    given    his

criminal history.            Therefore, this conviction does not qualify

as a “violent felony” for purposes of 18 U.S.C. § 924(e)(2)(B).

When the district court fixed his sentence, this argument was

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

242 (4th Cir. 2005).             Subsequently, however, we overruled Harp

with our en banc decision in United States v. Simmons, __ F.3d

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

Pursuant to          the dictates of Simmons, we find merit in Rhodes’s

appeal.

               Accordingly, the district court’s judgment is affirmed

as to the conviction, vacated as to the sentence, and the case

is remanded for resentencing.                   We dispense with oral argument

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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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