UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4455
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LIONEL RAY MCCALL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W.
Boyle, District Judge. (5:10-cr-00219-BO-3)
Submitted: December 13, 2011 Decided: December 21, 2011
Before SHEDD, DAVIS, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Terry F. Rose, Smithfield, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lionel Ray McCall was convicted following his guilty
plea to conspiracy to possess with intent to distribute fifty
grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2006). At sentencing, McCall asserted, inter
alia, that his prior North Carolina conviction for maintaining a
vehicle, dwelling, or place for controlled substances (“drug
conviction”) did not qualify as a felony controlled substance
offense, as required for the career offender enhancement, U.S.
Sentencing Guidelines Manual (“USSG”) § 4B1.1 (2010), because
his sentence for that conviction did not exceed twelve months’
imprisonment. The district court denied the objection,
classified McCall a career offender, and imposed a 262-month
sentence. McCall timely appealed.
On appeal, McCall argues that his North Carolina drug
conviction is not a proper predicate for the career offender
enhancement because, under our recent decision in United States
v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), the drug
conviction was not punishable by imprisonment for a term
exceeding one year. In its response brief, the Government
concedes that McCall should be resentenced in light of Simmons.
For the reasons that follow, we vacate McCall’s sentence and
2
remand this case to the district court for resentencing, 1 but we
affirm McCall’s conviction, which is not challenged on appeal.
McCall’s prior North Carolina conviction was not
punishable by imprisonment for a term exceeding one year. See
N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting out minimum
and maximum sentences applicable under North Carolina’s
structured sentencing scheme). When McCall raised this argument
in the district court, it was foreclosed by our decision in
United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005).
However, we have since overruled Harp with our en banc decision
in Simmons, in which we adopted a similar argument in favor of
the defendant. See Simmons, 649 F.3d at 241, 246-47. In view
of our holding in Simmons, we vacate McCall’s sentence and
remand this case to the district court for resentencing. 2
Finally, we affirm McCall’s conviction. We dispense with oral
argument because the facts and legal contentions are adequately
1
Because we conclude that McCall is entitled to relief
under Simmons, we need not resolve McCall’s alternative
challenge to the career offender enhancement that his prior
North Carolina conviction for taking indecent liberties with a
child does not qualify as a “crime of violence.”
2
The parties also agree that McCall should be resentenced
in accordance with the Fair Sentencing Act of 2010, Pub. L. No.
111–220, 124 Stat. 2372 (2010). Because we are remanding this
case for resentencing in light of Simmons, we decline to address
this issue, leaving it instead for the district court to
consider in the first instance.
3
presented in the materials before the Court and argument would
not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
4