Unpublished opinions are not binding precedent in this circuit.

Elias Kaneal Azon pled guilty to possession with intent to distribute more than five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006). He was sentenced as a career offender to 210 months’ imprisonment. On appeal, Azon contends that he was improperly characterized as a career offender because he does not have two prior felony convictions of either a crime of violence or a controlled substance offense, as required by U.S. Sentencing Guidelines Manual (USSG) § 4B1.1(a) (2008). Azon concedes that his 2008 1 North Carolina conviction for possession with intent to sell and deliver cocaine is a qualifying predicate conviction. However, he asserts that his North Carolina controlled substance convictions in 2004 and 2005 were not punishable by terms of imprisonment exceeding one year. See id. cmt. n. 1 (applying definitions in USSG § 4B1.2); § 4B1.2(b) (defining “controlled substance offense”). He reasons that, under the North Carolina Structured Sentencing Act, his maximum sentence was twelve months, even applying the aggravated range. See N.C. Gen.Stat. § 15A-1340.17(c)-(d) (2007) (applicable to offenses committed on or after Dec. 1, 1995, and on or before Nov. 30, 2009). 2

When Azon 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 sustain Azon’s objection.

Accordingly, while we affirm Azon’s conviction, which is not challenged on appeal, we vacate his sentence and remand to the district court for resentencing. 3 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.