UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 08-4102



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


CLARENCE DAKIM KEBREAU,

                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. (3:05-cr-00222-RJC-CH-l)


Submitted:   October 20, 2008            Decided:   November 25, 2008


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


Vacated and remanded by unpublished per curiam opinion.


Leslie Carter Rawls, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Adam Morris,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Clarence Kebreau pled guilty, without a plea agreement,

to two counts of possessing a firearm after having been convicted

of a felony, in violation of 18 U.S.C. § 922(g) (2006).          At

Kebreau’s guilty plea hearing, the court reviewed the first count

of the indictment and related penalties, noting that “in certain

limited instances where the Defendant has a long prior criminal

record and is considered an armed career criminal, the maximum

penalty for this offense could be as much as not less than 15

years, nor more than life imprisonment, a $250,000 fine or both.”

The court then asked both Kebreau’s attorney and the government’s

attorney about their positions on the applicability of the armed

career criminal statute.      Both counsel stated that, in their

opinions, it did not apply.    The court then went on to review the

second count of the indictment (also charging a violation of

§ 922(g)), but did not mention the possibility of an enhanced

sentence.    The court accepted Kebreau’s guilty plea.

            Contrary to the parties’ beliefs expressed at the guilty

plea hearing, the presentence report (PSR) recommended that Kebreau

be sentenced as an armed career criminal based on two prior crimes

of violence and one prior controlled substance offense.      See 18

U.S.C. § 924(e) (2006).      Kebreau wrote several letters to the

district court, voicing his objection to the armed career criminal

enhancement and clearly indicating that he would not have agreed to


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plead guilty had he known he would be sentenced as an armed career

criminal.     Construing      Kebreau’s      letters    as    both    a   motion   to

withdraw his guilty plea and objections to the PSR, the district

court denied both.         The court sentenced Kebreau to 180 months

imprisonment.    Kebreau noted a timely appeal.

            Kebreau’s only argument on appeal is that his plea was

not knowing and voluntary because the district court failed to

adequately advise him of the mandatory minimum sentence he faced.

In light of our decision in United States v. Hairston, 

(4th Cir. 2008), we agree.

            Rule 11 requires that, prior to accepting a guilty plea,

a district court must, among other things, explain to the defendant

the nature of the charge to which he is pleading guilty, the

maximum    penalty   he    faces,   as   well   as     “any   mandatory     minimum

penalty.”     Fed.   R.    Crim.    P.   11(b)(1)(I).         In     Hairston,     the

defendant was indicted on sixty-two counts of various drug and

firearms offenses.        The defendant and the government entered into

a plea agreement in which the government dismissed six of the

charges in exchange for Hairston’s guilty plea to the remaining

counts.     The plea agreement was silent as to the armed career

criminal enhancement and no mention was made of it at the Rule 11

hearing.     However, the PSR determined that Hairston should be

sentenced as an armed career criminal, a “determination that

greatly affected the minimum sentence Hairston faced.” 

Hairston sought to withdraw his guilty plea on the grounds that, if

he had known of the higher mandatory minimum sentence, he would

never have agreed to plead guilty.

            We held that “while the district court at the time of the

Rule 11 proceeding could not have been certain about whether

Hairston    would   qualify   as    an   armed     career   criminal,    Rule   11

nonetheless required the court to anticipate the possibility and

explain to Hairston the sentence that would be applicable if he had

prior   qualifying     convictions.”         

   noted    that

although, as in this case, the “presentence report eventually

informed the parties of the mandatory minimum sentence, Rule 11

violations cannot be cured by a PSR prepared after a guilty plea

was accepted.”       

(citation omitted).                   Because

Hairston, like Kebreau, preserved the Rule 11 issue by seeking to

withdraw his guilty plea, we went on to find that the government

failed to meet its burden of proving that the error was harmless.

            We find that the facts of this case are sufficiently

similar to the facts in Hairston.                  Although in this case the

district court at least mentioned the possibility of an enhanced

sentence,    Kebreau    was   led    to      reasonably     believe     that    the

enhancement would not apply to him.

            Accordingly, we vacate Kebreau’s conviction and guilty

plea and remand to the district court to give him the opportunity

to plead anew.      We dispense with oral argument because the facts


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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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