UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4875

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ELIAS KANEAL AZON, a/k/a Elias Kaneal Azan,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Wilmington. James C. Fox, Senior

District Judge. (4:08-cr-00060-F-1)

Submitted: September 30, 2011 Decided: October 18, 2011

Before KING, SHEDD, and AGEE, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, 

Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Raleigh, North Carolina, for Appellant. George E. B. 

Holding, United States Attorney, Anne M. Hayes, Jennifer P. MayParker, Assistant United States Attorneys, Raleigh, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

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 20081

 1 Azon was arrested for this offense in 2006 and convicted 

in 2008.

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-
3

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

AFFIRMED IN PART,

 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 IN PART,

AND REMANDED

 2 Subsequent amendments to the statute do not affect this 

case.

3 Because we have concluded that Azon is entitled to 

resentencing, we find it unnecessary to address his remaining

argument, which challenges the procedural reasonableness of his 

sentence.