UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5320


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAWAUN JERMEL SMITH,

                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-00019-WO-1)


Submitted:   October 14, 2011             Decided:   January 4, 2012


Before KING, GREGORY, and DAVIS, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.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


Unpublished opinions are not binding precedent in this circuit.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

            Jawaun       Jermel    Smith           pled    guilty    to    possessing       a

firearm after having been convicted of a crime punishable by

imprisonment for a term exceeding one year in violation of 18

U.S.C. § 922(g)(1) (2006), but reserved his right to appeal the

issue of whether his prior conviction was punishable by more

than one year of imprisonment.                     The offense in question was a

prior North Carolina conviction for possession with intent to

sell and deliver cocaine.                A defendant with a criminal record

similar to Smith’s faced a maximum possible sentence of less

than one year under North Carolina law for this offense.                                 Smith

appealed,      arguing     that    his     prior          state   conviction       was    not

“punishable by imprisonment for a term exceeding one year.”                               The

parties have filed a joint motion to vacate Smith’s conviction.

            We recently held that, when deciding whether a North

Carolina    conviction        is     a    predicate         offense       for    sentencing

enhancement purposes, the Controlled Substance Act’s inclusion

of offenses “punishable by imprisonment for more than one year”

refers to the maximum sentence that the defendant in question

could   have    received,      not       the   sentence       that    could      have    been

imposed on a defendant with a more severe criminal history or

one   subject       to   an   aggravated           sentence.         United      States    v.

Simmons, 

, 241 (4th Cir. 2011) (en banc).                                     The

reasoning      in   Simmons    applies         with       equal   force     to   predicate

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convictions as defined in 18 U.S.C. § 922(g)(1).                              See Carachuri-

Rosendo       v.        Holder,    130        S.        Ct.     2577,        2586-87       (2010)

(distinguishing          between       “conduct         punishable      as    a    felony”     and

conviction         of    a   felony     offense);            

(concluding that the North Carolina Structured Sentencing Act

“creates separate offenses that in turn yield separate maximum

punishments”).                 Thus,        because       Smith’s       underlying         state

conviction     was       not    punishable         by    a    term   exceeding       one   year,

Smith’s conduct that formed the basis for his federal conviction

— possessing a firearm — did not violate § 922(g).

              Accordingly, we reverse Smith’s conviction and remand

for further proceedings.                We deny the motion to vacate as moot.

The   Clerk    is       directed       to    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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