                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5029


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAVON LAMONT LEACH,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:09-cr-00356-TDS-1)


Submitted:   September 30, 2011           Decided:   October 7, 2011


Before MOTZ, DUNCAN, and AGEE, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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.   Ripley Rand, United States Attorney,
Lisa B. Boggs, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Javon Lamont Leach pled guilty to unlawful possession

of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2006),

and    was     sentenced      to     a     term     of     eighty-five        months     of

imprisonment.         Leach appeals his sentence, contending that the

district      court   erred    in    finding       that    he     qualified    for     base

offense       level   24     under       U.S.     Sentencing       Guidelines      Manual

§ 2K2.1(a)(2) (2009), based on two predicate convictions, one of

which was a 2005 North Carolina drug trafficking offense.                                In

light of our recent decision in United States v. Simmons, 649

F.3d 237, 2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en banc), we

agree with Leach that the 2005 drug conviction does not qualify

as a felony conviction.             Accordingly, we vacate the sentence and

remand for resentencing.

              We review a sentence for abuse of discretion.                      Gall v.

United    States,     552    U.S.    38,    51    (2007).         The   district     court

commits       significant      procedural          error     when       it    improperly

calculates the Guidelines range.                  Id.     At his sentencing, Leach

objected to the base offense level of 24 on the ground that his

2005 drug conviction did not expose him to a sentence of more

than one year of imprisonment.                   See § 2K2.1 cmt. n.1 (defining

felony conviction).           The district court followed United States

v.    Harp,    406    F.3d    242    (4th       Cir.     2005),    overruled     Leach’s

objection, and sentenced him within his Guidelines range to a

                                            2
term of eighty-five months’ imprisonment.                    Harp has since been

overruled by Simmons, which held that, under the North Carolina

structured        sentencing     scheme,       see   N.C.     Gen.    Stat.       § 15A-

1340.17(c)-(d) (2009), the evaluation of whether a particular

offense was a felony must focus on the maximum sentence for

which   a   particular     defendant       was    eligible,       based    on   his   own

criminal history, rather than the maximum sentence that could be

imposed on a defendant with the worst possible criminal record.

Simmons, 649 F.3d at ___, 2011 WL 3607266 at *6.                     Judged by this

standard, Leach’s 2005 drug conviction does not qualify as a

felony, and resentencing is required.

             We    therefore     affirm    Leach’s     conviction,         vacate     his

sentence, and remand for resentencing consistent with 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 IN PART,
                                                                    VACATED IN PART,
                                                                        AND REMANDED




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