UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4414
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BOBBY LINDBERG CADDELL,
Defendant – Appellant.
No. 10-4415
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BOBBY LINDBERG CADDELL,
Defendant – Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00221-NCT-1; 1:09-cr-
00224-NCT-1)
Submitted: September 29, 2011 Decided: October 4, 2011
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished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. Anna Mills Wagoner, United States
Attorney, Michael A. DeFranco, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Bobby Lindberg Caddell appeals the 188-month sentence
imposed following his guilty plea to possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006),
and possession of counterfeit Federal Reserve Notes, in
violation of 18 U.S.C. § 472 (2006). On appeal, Caddell argues
that the district court improperly sentenced him as an armed
career criminal because the three prior breaking and entering
convictions on which that classification was based were not
violent felonies punishable by more than one year of
imprisonment under North Carolina law. See 18 U.S.C.
§ 924(e)(1) (2006); N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2007)
(applicable to offenses committed on or before November 30,
2009). * When Caddell raised this 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, 649
F.3d 237 (4th Cir. 2011) (en banc). In view of Simmons, we
vacate Caddell’s sentence and remand the case to the district
court for resentencing. We affirm Caddell’s conviction.
*
The North Carolina legislature subsequently amended the
statute with regard to offenses committed on or after
December 1, 2009, see Act of Aug. 28, 2009, 2009 N.C. Sess. Laws
555, and offenses committed on or after December 1, 2011. See
Justice Reinvestment Act of 2011, 2011 N.C. Sess. Laws 192.
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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
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