UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5065
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHADNEY STANBACK,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. Irene C. Berger,
District Judge. (1:10-cr-00013-1)
Submitted: September 15, 2011 Decided: September 27, 2011
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Lex A. Coleman, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. R. Booth
Goodwin II, United States Attorney, Miller Bushong, Assistant
United States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chadney Stanback appeals his ninety-six month sentence
for possession with intent to distribute a quantity of cocaine
base in violation of 21 U.S.C. § 841(a)(1) (2006). Stanback
argues that his sentence was procedurally unreasonable because
the district court erred in calculating his Guidelines sentence
by finding that he was a career offender under U.S. Sentencing
Guidelines Manual (“USSG”) § 4B1.1(a) (2009). A sentence is
procedurally unreasonable if the district court improperly
calculated the offender’s Guidelines range of imprisonment.
United States v. Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010).
Stanback claims that he was not a career offender for
purposes of USSG § 4B1.1(a) because he did not possess two prior
felony convictions of either a crime of violence or a controlled
substance offense. Predicate convictions for career offender
status only encompass offenses punishable by imprisonment for a
term exceeding one year. USSG § 4B1.2(a), (b). Stanback claims
that the district court erred in treating his 2009 North
Carolina state conviction for possession with intent to sell
cocaine as a predicate conviction.
We conclude that, under North Carolina’s structured
sentencing regime and in light of Stanback’s criminal history,
he could not have received a custodial sentence of more than one
year for his 2009 cocaine offense. When Stanback raised this
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argument in the district court, it was foreclosed by our
decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005).
Subsequently, however, we overruled Harp with our en banc
decision in United States v. Simmons, __ F.3d __, 2011 WL
3607266 (4th Cir. Aug. 17, 2011) (en banc). Pursuant to the
dictates of Simmons, we sustain Stanback’s objection here.
Accordingly, the district court’s judgment is affirmed
as to the conviction, vacated as to the sentence, and the case
is remanded for resentencing. 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 in
the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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