**UN PUBLISHED** 
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 Distric t 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 un published 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. May

Parker, Assistant United States Attorney s , Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM: Elias Kaneal Azon pled g uilty to possession with intent to distribute more than five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006). H e was sentenced as a career offender to 210 months’ imprisonment. On appeal, Azon contends that he was improperly character ized 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 200 8 1

1 Azon was arrested for this offense in 2006 and convicted in 2008
. North Carolina conviction for possession with intent to sell and d eliver 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

exc eeding one yea r. See i d. 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, w hile 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 material s 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 Be cause 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
.