UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4437

RALPH SAMUEL HERRING,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Charlottesville.

James H. Michael, Jr., Senior District Judge.

(CR-91-28)

Submitted: November 3, 1998

Decided: November 18, 1998

Before ERVIN and MOTZ, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

John E. Davidson, MCGUIRE, WOODS, BATTLE & BOOTHE,

L.L.P., Charlottesville, Virginia, for Appellant. Robert P. Crouch, Jr.,

United States Attorney, Donald R. Wolthuis, Assistant United States

Attorney, Roanoke, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Ralph Samuel Herring appeals from the sentence imposed on him

by the district court following revocation of Herring's supervised

release. It is undisputed that the sentence imposed was calculated

based on an improper characterization of the underlying offense as a

Class B felony. Consequently, we vacate Herring's sentence and

remand for resentencing consistent with this opinion.

Herring had served sixty months in prison for using or carrying a

firearm during and in relation to a drug trafficking crime, 18 U.S.C.A.

§ 924(c) (West Supp. 1998), and was serving a three year term of

supervised release when he tested positive for marijuana use. At his

supervised release revocation hearing, the district court heard argument concerning whether the underlying offense was a Class B or a

Class D felony. Under 18 U.S.C.A. § 3583(e)(3) (West Supp. 1998),

the district court could impose up to three years in prison if the underlying offense was a Class B felony or up to two years in prison if the

underlying offense was a Class D felony. Concluding that Herring's

§ 924(c) conviction qualified as a Class B felony, the district court

sentenced him to twenty-seven months in prison. On appeal, both parties agree that this was incorrect.

Under 18 U.S.C. § 3559(a)(2), (4) (1996), a felony carrying a maximum sentence of twenty-five years or more is a Class B felony and

a felony carrying a maximum penalty of less than ten years but five

years or more is a Class D felony. Violations of§ 924(c) carry a mandatory five year prison term. Thus, a § 924(c) offense constitutes a

Class D felony. See United States v. Jones, 24 F.3d 1544, 1545 (6th

Cir. 1994); United States v. Corey, 999 F.2d 493, 496 (10th Cir.

1993); United States v. Robertson, 901 F.2d 733, 734 (9th Cir. 1990).

Because Herring's § 924(c) conviction qualified as a Class D fel-

 2
ony, the statutory maximum sentence he could receive was two years

in prison. Herring's twenty-seven month sentence exceeds the statutory maximum. Consequently, we vacate the sentence and remand for

resentencing consistent with this opinion.* 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.

VACATED AND REMANDED

_________________________________________________________________

*This court's decision renders moot Herring's argument that his

twenty-seven month sentence was unreasonable.

 3