UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 03-6345
ERIC EUGENE MOBLEY,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
      for the Western District of North Carolina, at Charlotte.
               Richard L. Voorhees, District Judge.
                  (CR-94-92; CA-99-282-3-1-V)

                      Submitted: April 9, 2004

                      Decided: April 30, 2004

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



Vacated and remanded by unpublished per curiam opinion.


                            COUNSEL

Eric Eugene Mobley, Appellant Pro Se. Gretchen C. F. Shappert,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. MOBLEY
                              OPINION

PER CURIAM:

   Eric Eugene Mobley appeals the district court’s order denying
relief on his motion filed under 28 U.S.C. § 2255 (2000), in which he
sought resentencing after he obtained a state court order setting aside
a conviction that was used to determine his federal sentence. We pre-
viously granted Mobley a certificate of appealability on this issue. In
the same order, we denied a certificate of appealability and dismissed
Mobley’s appeal with respect to all other issues. For the reasons that
follow, we vacate the district court’s order as to the issue on which
we granted a certificate of appealability and remand for resentencing.
We also grant Mobley’s motion to take judicial notice of our decision
in United States v. Gadsen, 

(4th Cir. 2003).

                                   I.

   Mobley pled guilty to conspiracy to possess with intent to distrib-
ute crack cocaine. In establishing a criminal history category of II, the
district court assessed two criminal history points for a September
1990 North Carolina conviction for carrying a concealed weapon. The
district court sentenced Mobley to a 169-month prison term, the mid-
dle of the applicable sentencing guideline range.

   In the post-conviction proceedings in the district court, Mobley
replied to the Government’s response to his § 2255 motion on August
21, 2000, and stated that the state court had overturned his 1990 con-
viction for carrying a concealed weapon. The state court "set aside
and removed [the conviction] from [Mobley’s] criminal record" on
February 11, 2000, concluding that "the record does not disclose that
[Mobley] voluntarily and understandingly entered this plea." Because
two criminal history points were assessed for the 1990 conviction,
Mobley argued that, under the Supreme Court’s decisions in Custis
v. United States, 

(1994), and Daniels v. United States,

(2001), he should be resentenced without those points.
He asserted that, with one criminal history point remaining, his crimi-
nal history category should be I. With an offense level of thirty-three,
the applicable guideline range should be 135 to 168 months. The dis-
trict court denied Mobley’s claim.
                       UNITED STATES v. MOBLEY                           3
                                    II.

   Mobley contends on appeal that calculating his criminal history
category of II using the expunged state court conviction resulted in a
harsher sentence than that to which he would have been subject with
a criminal history category of I. The Government has responded,1 and
Mobley replied. See 4th Cir. R. 22(a)(1)(B).

   In denying Mobley’s claim as untimely, the district court did not
have the benefit of our decision in 

(holding
that "the federal statute of limitations begins running when the state
court conviction is conclusively invalidated"). Under Gadsen, Mobley
timely filed his claim.

   Turning to the merits of Mobley’s claim, we conclude that the
Supreme Court’s decisions in Custis and Daniels allow a prisoner,
like Mobley, to seek reopening of his federal sentence when a state
court conviction, for which criminal history points were assessed, has
been overturned. Gadsen, 

; United States v. Doe, 

, 474-75 (2d Cir. 2001). Moreover, we find that, in declining
to reopen Mobley’s federal sentence, the district court erred by
according no weight to the state court’s opinion overturning the con-
viction for carrying a concealed weapon. See United States v. Cox,

, 130 (2d Cir. 2001); Mateo v. United States, 276 F.
Supp. 2d 186, 193 (D. Mass. 2003); cf. Fisher v. Angelone, 

, 844 (4th Cir. 1998). Giving the state court’s order setting aside
the conviction the appropriate legal effect, Mobley is entitled to have
his federal sentence reopened.

   Having concluded that Mobley’s federal sentence should be
reopened, we turn to the question of whether the state court convic-
tion for carrying a concealed weapon was expunged for purposes of
the sentencing guidelines. See U.S. Sentencing Guidelines Manual
§ 4A1.2(j) & comment. (n.10) (1994).2 "Convictions reversed or
  1
     To the extent that the Government suggests for the first time on
appeal that Mobley’s claim is procedurally defaulted, we find that the
Government is precluded from asserting such defense. See United States
v. Metzger, 

, 757-58 (4th Cir. 1993).
   2
     The current version of this provision is identical to the provision in
effect in 1994 when Mobley was sentenced.
4                     UNITED STATES v. MOBLEY
vacated for reasons related to constitutional invalidity, innocence, or
errors of law are expunged for purposes of the Guidelines and there-
fore cannot be included in criminal history calculations." United
States v. Cox, 

, 339 (10th Cir. 1996); see United States
v. Dobovsky, 

, 8 (1st Cir. 2002); United States v. Hines,

, 1363 (10th Cir. 1998); United States v. McDonald,

, 871 (D.C. Cir. 1993). Because the state court set aside
the conviction based upon the constitutional invalidity of Mobley’s
guilty plea, we find that the sentence was expunged and should not
be included in the calculation of Mobley’s criminal history.

   Accordingly, we vacate the district court’s order on the issue for
which we granted a certificate of appealability and remand for resen-
tencing without the assessment of two criminal history points for the
expunged conviction. 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.

                                       VACATED AND REMANDED