UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4580


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

FRANKLIN ALEXANDER MILLS,

                Defendant – Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00039-WO-1)


Submitted:   September 29, 2011          Decided:   December 15, 2011


Before MOTZ, KING, 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Affirmed in part, vacated in part, and remanded by unpublished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.     John W. Stone, Jr., Acting United
States Attorney, Michael F. Joseph, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A jury convicted Franklin Alexander Mills of multiple

drug and firearms offenses, 1 and the district court sentenced him

to a total of 180 months’ imprisonment.              On appeal, Mills argues

that the district court erred in denying his motion to suppress

evidence,    improperly   sentenced       him   to    the   mandatory   minimum

five-year term of imprisonment for violation of § 924(c) to run

consecutively to the mandatory minimum sentence for violation of

§ 841(b)(1)(B), and improperly enhanced his sentence based on a

prior North Carolina conviction.            We affirm Mills’ convictions

but vacate his sentence in part and remand to the district court

for resentencing.

            Mills argues that the district court erred in denying

his motion to suppress the evidence recovered following a canine

sniff of his vehicle.      In reviewing the district court’s denial

of a motion to suppress, “[w]e review the district court’s legal

determinations de novo and its factual determinations for clear

error.”     United States v. Kelly, 

, 589 (4th Cir.),

cert. denied, 

(2010).                When the district court

     1
       The jury convicted Mills of possession with intent to
distribute cocaine base and cocaine hydrochloride, in violation
of 21 U.S.C.A. § 841(a)(1), (b)(1)(B), and (b)(1)(C) (West 1999
& Supp. 2011), possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C.A. § 924(c)(1)(A)(i)
(West 2000 & Supp. 2011), and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006).



                                      2
has denied a suppression motion, “we construe the evidence in

the light most favorable to the government.”                      

of

the record leads us to conclude that the district court did not

err in denying Mills’ motion to suppress.                     See United States v.

Farrior,    

,    220    (4th    Cir.    2008)    (concluding         that

brief canine sniff after officer issued citation and returned

license and registration was “a de minimis intrusion on [the

defendant’s] liberty interest”).                   Therefore, we affirm Mills’

convictions.

            Mills next argues that the district court erred in

sentencing     him    to     a     mandatory       minimum       five-year      term    of

imprisonment for violation of § 924(c) to run consecutively to

the   ten-year       mandatory         minimum    sentence       for     violation      of

§ 841(b)(1)(B).       Mills’ argument is, however, foreclosed by the

Supreme Court’s recent decision in Abbott v. United States, 

, 23 (2010) (holding “that a defendant is subject to a

mandatory, consecutive sentence for a § 924(c) conviction, and

is not spared from that sentence by virtue of receiving a higher

mandatory    minimum        on     a     different       count     of    conviction”).

Therefore, we affirm this portion of Mills’ sentence.

            Finally,       Mills       argues    that   the   North      Carolina      drug

conviction used to enhance his mandatory minimum sentence under

§ 841(b)(1)(B)       was   not     punishable      by    more     than    one   year     of

imprisonment.        See 21 U.S.C. § 802(44) (2006) (defining felony

                                            3
for purposes of § 841 as a crime “punishable by imprisonment for

more       than    one    year”);    N.C.   Gen.       Stat.   §   15A-1340.17(c)-(d)

(2007)      (setting      out     minimum   and    maximum     sentences   applicable

under North Carolina’s sentencing scheme to offenses committed

on or after Dec. 1, 1995, and before Dec. 1, 2009). 2                      When Mills

raised this argument in the district court, it was foreclosed by

our decision in United States v. Harp, 

(4th Cir.

2005).        Subsequently, however, we overruled Harp with our en

banc decision in United States v. Simmons, 

(4th

Cir. 2011) (en banc), in which the defendant raised the same

argument.          In view of Simmons, we vacate this portion of Mills’

sentence          and    remand     the   case    to     the    district   court   for

resentencing.

                  Accordingly, we affirm Mills’ convictions, affirm his

sentence in part and vacate his sentence in part, and remand for

resentencing in accordance 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


       2
       The statute subsequently was amended, but the amendments
do not apply to Mills.



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