ON REHEARING

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4881

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHRISTOPHER TERRELL SHORT,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. William L. Osteen, Sr., Senior District Judge. (1:07-cr-00084-WLO)

Submitted: April 12, 2010 Decided: October 28, 2011

Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville, North Carolina, for Appellant. Sandra Jane Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Pursuant to a plea agreement, Christopher Terrell

Short pled guilty to possession with intent to distribute 1000.2

grams of cocaine hydrochloride, in violation of

(a)(1) (2006). The district court sentenced him as a

career offender to a 190-month term of imprisonment. On appeal,

Short’s counsel filed a brief pursuant to Anders v. California,

(1967), stating that there were no meritorious

issues for appeal but questioning the procedural reasonableness

of Short’s sentence. Short filed a pro se supplemental brief.

In our initial opinion, we affirmed the district court’s

judgment. We previously granted Short’s petition for panel

rehearing and now affirm the conviction, vacate the sentence,

and remand for resentencing.

Although neither Short nor his counsel challenges the

adequacy of plea hearing on appeal, we have reviewed the

transcript of the plea hearing for plain error. See United

States v. Martinez,

(4th Cir. 2002) (providing

standard). Our careful review of the record convinces us that

the district court substantially complied with the mandates of

Fed. R. Crim. P. 11 in accepting Short’s guilty plea and that

any omission on the court’s part did not affect Short’s

substantial rights. Moreover, the district court ensured that

Short’s guilty plea was knowing and voluntary and supported by a

2 sufficient factual basis. See United States v. DeFusco,

(4th Cir. 1991).

Short and his counsel question the procedural

reasonableness of Short’s sentence. We review a sentence for

reasonableness under an abuse-of-discretion standard. Gall v.

United States,

(2007). This review requires

appellate consideration of both the procedural and substantive

reasonableness of a sentence.

This court assesses

procedural reasonableness by determining whether the district

court properly calculated the advisory Guidelines range,

considered the factors in

(a) (2006), analyzed

any arguments presented by the parties, and sufficiently

explained the selected sentence. Gall,

; see

United States v. Lynn,

(4th Cir. 2010).

Finally, if there is no significant procedural error, this court

reviews the substantive reasonableness of the sentence. United

States v. Mendoza-Mendoza,

(4th Cir. 2010).

Short asserts that his prior North Carolina

convictions for possession with intent to sell and deliver

cocaine were not felonies because he was subject to a maximum

sentence of less than twelve months. He therefore argues that

these prior convictions should not have been used to classify

him as a career offender. Because Short did not advance this

argument in the district court, our review is for plain error.

3 See United States v. Slade,

(4th Cir.)

(discussing standard), cert. denied,

(2011);

United States v. Knight,

(4th Cir. 2010)

(same).

We initially rejected Short’s challenge to his career

offender designation based upon our prior ruling in United

States v. Harp,

(4th Cir. 2005). However, in our

recent en banc decision in United States v. Simmons,

,

(4th Cir. Aug. 17, 2011) (No. 08-4475), we

overruled Harp and held that, under North Carolina’s statutory

sentencing scheme, a defendant is convicted of a crime

punishable by more than one year only if an offender with the

same prior record level and convicted of similar aggravating

factors could have received a sentence exceeding one year.

at *5-*9. In making this determination, a court must consider

the defendant’s particular “state record of conviction.” Id. at

*9.

The state court judgment of conviction entered against

Short indicates that his prior convictions for possession with

intent to sell and deliver cocaine were classified as Class H

felonies. In addition, Short had a prior record level of III

and was not charged with any aggravating factors. Given these

facts, Short could have been sentenced to a presumptive minimum

term of eight to ten months or a mitigated minimum term of six

4 to eight months. See N.C. Gen. Stat. § 15A-1340.17(c) (2009).

The state court applied the mitigated range, sentencing Short to

a minimum term of six months and a maximum term of eight months.

See N.C. Gen. Stat. § 15A-1340.17(d) (2009).

Applying the Simmons holding here, we conclude that

North Carolina’s statutory sentencing scheme allowed the state

court to impose a maximum possible sentence in the mitigated

range of ten months. See N.C. Gen. Stat. § 15A-1340.17(d)

(2009). Thus, neither of Short’s convictions for possession

with intent to sell and deliver cocaine qualified as a predicate

offense for career offender purposes. Because it is now clear

that Short was sentenced improperly as a career offender, 1 we

vacate his sentence and remand for resentencing. 2 See United

States v. Lewis,

(4th Cir. 2010) (“[This Court

has] emphasized that [a] sentence based on an improperly

1 The district court, of course, did not have the benefit of our decision in Simmons at the time it sentenced Short. 2 In light of our holding, we need not address Short’s claims that the prior convictions should have been counted as a single sentence, that Amendment 709 to the Sentencing Guidelines applied to his case, and that the district court failed to adequately explain its reasons for imposing a 190-month career offender sentence and failed to depart downward on the ground that the career offender Guidelines range overstated Short’s criminal history. To the extent counsel also attempts to challenge the validity of Short’s January 31, 2001 predicate offense, he may not do so in this appeal. See Custis v. United States,

(1994).

5 calculated [G]uidelines range will be found unreasonable and

vacated.”) (internal quotation marks omitted).

In accordance with Anders, we have reviewed the entire

record for any other meritorious issues and have found none. We

therefore affirm Short’s conviction, vacate his sentence, and

remand for resentencing. This court requires that counsel

inform his client, in writing, of the right to petition the

Supreme Court of the United States for further review. If the

client requests that a petition be filed, but counsel believes

that such a petition would be frivolous, then counsel may move

in this court for leave to withdraw from representation.

Counsel’s motion must state that a copy thereof was served on

the client. 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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