                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5235


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JASON MICHAEL PARRISH,

                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-00112-WO-1)


Submitted:   September 6, 2011           Decided:   September 13, 2011


Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant.   Ripley Rand, United States Attorney,
Robert A. J. Lang, Assistant United States Attorney, Winston-
Salem, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Jason    Michael     Parrish       appeals       the   district      court’s

judgment, challenging his conviction for possessing a firearm as

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

asserting that his prior North Carolina convictions were not

felonies inasmuch as they were not punishable for a term of

imprisonment    exceeding        one   year.       The    district        court    denied

Parrish’s    motion    to   dismiss       the    indictment,        relying       on   this

court’s decision in United States v. Harp, 406 F.3d 242, 246

(4th Cir. 2005).        Parrish entered a conditional plea of guilty

to the § 922(g)(1) charge, and timely appealed.

             This court reviews de novo a district court’s denial

of a motion to dismiss the indictment where denial depends on a

question of law.        See United States v. Hatcher, 560 F.3d 222,

224   (4th   Cir.     2009).       This     appeal       turns      on   § 922(g)(1)’s

prohibition of the possession of a firearm by any person “who

has   been   convicted      in   any    court     of,     a    crime     punishable     by

imprisonment     for    a   term       exceeding     one       year.”       18     U.S.C.

§ 922(g)(1).

             At the time of Parrish’s indictment and conviction,

this court determined whether a prior conviction qualified as a

felony for purposes of § 922(g)(1) by considering “the maximum

aggravated sentence that could be imposed for that crime upon a



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defendant with the worst possible criminal history.”                      Harp, 406

F.3d at 246.      While Parrish’s appeal was pending, however, Harp

was   overruled    by    our   en   banc       decision   in    United    States   v.

Simmons,         F.3d      , 2011 WL 3607266 (4th Cir. Aug. 17, 2011)

(en banc).      Simmons held that a prior North Carolina offense was

punishable for a term exceeding one year only if the particular

defendant before the court had been eligible for such a sentence

under the applicable statutory scheme, taking into account his

criminal history and the nature of his offense.                   Id., at *8; see

also N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting forth

North Carolina’s structured sentencing scheme).                      We agree with

Parrish that, on the record before us, he was not eligible on

his North Carolina convictions to receive a sentence exceeding

one year.

            Because     Simmons     directs      the   conclusion     that   Parrish

was never convicted of a felony punishable by more than one year

of    incarceration,      he   cannot      be      convicted    as    a   felon    in

possession of a         firearm under          § 922(g)(1). *    Accordingly, we

vacate    the   district    court’s     judgment       and   remand   for    further

proceedings.      We dispense with oral argument because the facts


      *
       We of course do not fault the Government or the district
court for their reliance upon unambiguous circuit authority at
the time of Parrish’s indictment and conviction.



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and legal contentions are adequately presented in the materials

before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                      VACATED AND REMANDED




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