UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4933


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL UYIOGHOSA OHANGBON,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:09-cr-00346-TDS-1)


Submitted:   March 30, 2012                 Decided:   April 17, 2012


Before WILKINSON, DAVIS, and WYNN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


David Bruce Freedman, CRUMPLER, FREEDMAN, PARKER & WITT,
Winston-Salem, North Carolina, for Appellant.    Randall Stuart
Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Michael Uyioghosa Ohangbon pleaded guilty, pursuant to

a   plea     agreement,     to    possession        with    intent    to       distribute

marijuana, in violation of 21 U.S.C. § 841(a)(1) (2006), and

possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1) (2006).               Following a successful appeal, in

which   we    affirmed     the    convictions       but    vacated    the       sentence,

Ohangbon     was    resentenced     to    concurrent       thirty-month         terms    of

imprisonment.       In this appeal, Ohangbon argues that his § 922(g)

conviction is no longer valid in light of our decision in United

States v. Simmons, 

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

              In Simmons, we overruled United States v. Harp, 

(4th Cir. 2005), and held that a North Carolina state

conviction may not be classified as punishable by a term of

imprisonment exceeding one year based on the maximum aggravated

sentence     that   could    be    imposed     on    a    repeat    offender      if    the

individual     defendant     was    not    eligible        for     such    a    sentence.

, 243-48.

              Ohangbon’s    § 922(g)      conviction        was    supported      by    his

North      Carolina    conviction        for    possession         with        intent   to

distribute marijuana, a class I felony.                      See N.C. Gen. Stat.

§§ 90-95(b)(2), 90-94(1) (2011).                The record does not include

the state court judgment and it is not clear what Ohangbon’s

prior record level was at his state sentencing.                           However, the

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record does reflect that Ohangbon was ultimately sentenced to a

suspended     sentence      of    six     to    eight     months’    imprisonment.

Accordingly, it appears that he could not have been sentenced to

imprisonment for a term exceeding one year because even if he

faced a minimum sentence of eight months, Ohangbon was exposed

to a maximum term of imprisonment of no more than ten months.

N.C. Gen. Stat. § 15A-1340.17 (d) (2003).                     Applying Simmons, it

appears     that    Ohangbon     did    not    have     the   requisite    predicate

offense to be convicted of being a felon in possession of a

firearm.     We remand to the district court for the appropriate

determination regarding this prior conviction.

             Accordingly, we vacate Ohangbon’s § 922(g) conviction

and   his    sentence    and     remand       for   further     proceedings.      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




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