                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4017


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CLAYTON T. BROWN, JR.,

                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-00164-WO-1)


Submitted:   October 19, 2011             Decided:   November 3, 2011


Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Reversed and remanded by unpublished per curiam opinion.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.    Michael Francis Joseph, Assistant
United   States  Attorney,  Greensboro,  North  Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Clayton       T.    Brown,    Jr.,    was     convicted     following      his

guilty plea to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1) (2006).                       At sentencing, Brown

argued    that       his     prior    North       Carolina    breaking      and    entering

conviction did not qualify as a felony crime of violence for the

purposes of applying U.S. Sentencing Guidelines Manual (“USSG”)

§ 2K2.1(a)(4)(A) (2010), because he received a sentence that did

not    exceed       twelve       months’    imprisonment.        The      district     court

overruled the objection, relying on United States v. Harp, 406

F.3d    242    (4th       Cir.    2005),    and    sentenced     Brown     to    forty-four

months’ imprisonment.              Brown timely appealed.

               In    his    opening    brief,       Brown    reasserts      his    argument

that his North Carolina breaking and entering conviction was not

punishable by imprisonment for a term exceeding one year and,

thus,    that       the    conviction       could    not     serve   as    the    necessary

predicate       for       the    § 2K2.1(a)(4)(A)       enhancement.             During   the

pendency       of    the    appeal,    this    court       overruled      Harp    in   United

States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).                                 In

response to the Simmons decision, and prior to the completion of

briefing, the parties jointly moved this court to remand Brown’s

case     “to        the    District        Court     for     resentencing         or   other

disposition under . . . Simmons.”                    For the following reasons, we

broadly construe the language of the parties’ joint motion to

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reach the Simmons error underlying Brown’s conviction, reverse

the district court’s judgment, remand this case to the district

court, and deny the parties’ joint motion for resentencing as

moot.

             Because Brown did not challenge the validity of his

guilty   plea   in    the     district   court,   our    review     is   for   plain

error.   See United States v. Massenberg, 564 F.3d 337, 342 (4th

Cir. 2009) (issue not raised below is reviewed for plain error).

In order to satisfy the plain error standard, Brown must show:

(1) an error was made; (2) the error is plain; and (3) the error

affects substantial rights.              United States v. Olano, 507 U.S.

725, 732 (1993).

             In view of our holding in Simmons, we conclude that

Brown could not have been imprisoned for a term exceeding one

year for his prior breaking and entering conviction.                      See N.C.

Gen. Stat. §§ 15A-1340.16 to 15A-1340.17(c)-(d) (2009).                    Brown’s

prior North Carolina conviction for breaking and entering was a

Class H felony, and Brown was sentenced in the mitigated range

to a minimum of four-to-five months.              An offender sentenced to a

minimum sentence of five months can serve a maximum of only six

months in custody.       N.C. Gen. Stat. § 15A-1340.17(d).

             Because his prior conviction was not a felony, Brown

can   meet   his     burden    to   establish     each   of   the    plain     error

requirements.        At the time of Brown’s guilty plea, a Simmons

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challenge to Brown’s predicate felony for the purposes of his

§ 922(g)(1)     conviction   would   have    been   foreclosed   by    Harp.

However, this court has now overruled Harp.          Because plain error

exists “‘where the law at the time of trial was settled and

clearly contrary to the law at the time of appeal,’” Brown can

establish the error is plain.        United States v. Hughes, 401 F.3d

540, 547 (4th Cir. 2005) (quoting Johnson v. United States, 520

U.S. 461, 468 (1997)).       Moreover, because the error goes to the

validity   of    his   conviction,   Brown    can   establish    the   error

affects his substantial rights, and we exercise our discretion

to notice the error.     See Olano, 507 U.S. at 732.

           Accordingly, we reverse the district court’s judgment,

remand this case to the district court for further proceedings,

and deny the parties’ joint motion as moot.              The clerk shall

issue the mandate forthwith.          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.

                                                    REVERSED AND REMANDED




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