UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4185

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

RODNEY BURRELL,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Dever III,

District Judge. (5:10-cr-00056-D-1)

Submitted: November 3, 2011 Decided: November 29, 2011

Before MOTZ, SHEDD, and WYNN, Circuit Judges.

Affirmed in part, vacated in part and remanded by unpublished 

per curiam opinion.

Christopher R. Pudelski, LAW OFFICES OF CHRISTOPHER R. PUDELSKI, 

Washington, D.C., for Appellant. Thomas G. Walker, United 

States Attorney, Jennifer P. May-Parker, Kristine L. Fritz, 

Assistant United States Attorneys, Raleigh, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Rodney Burrell was convicted following his guilty plea 

to possession with intent to distribute five grams or more of 

cocaine base and aiding and abetting another in the same, in 

violation of 21 U.S.C. § 841(a)(1) (2006) and 18 U.S.C. § 2 

(2006). At sentencing, Burrell asserted that his prior North 

Carolina conviction for possession with intent to sell and 

deliver marijuana (“marijuana conviction”) did not qualify as a 

felony controlled substance offense, as required for the career 

offender enhancement, U.S. Sentencing Guidelines Manual (“USSG”) 

§ 4B1.1 (2010), because his sentence for that conviction did not 

exceed twelve months’ imprisonment.1

In his opening brief, Burrell reasserted the argument 

that his North Carolina marijuana conviction was not punishable 

by imprisonment for a term exceeding one year and, thus, that 

the conviction could not serve as a predicate for the career 

 The district court denied 

the objection, relying on United States v. Harp, 406 F.3d 242, 

246 (4th Cir. 2005), classified Burrell a career offender, and 

sentenced Burrell to 300 months’ imprisonment. Burrell timely 

appealed. 

 1 There is no dispute that Burrell’s North Carolina 

conviction for voluntary manslaughter, for which Burrell 

received a thirty-eight to fifty-five month sentence, qualified 

as a predicate felony crime of violence for purposes of the 

career offender designation.
3

offender enhancement. After briefing was completed, Burrell 

filed a motion to vacate his sentence and to remand this case to 

the district court for resentencing in light of United States v. 

Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). The Government 

consents to the remand. We grant the motion to remand, vacate 

Burrell’s sentence, and remand this case to the district court 

for resentencing. Further, we affirm Burrell’s conviction, 

which is not challenged on appeal. 

Burrell’s prior North Carolina conviction was not 

punishable by imprisonment for a term exceeding one year. See

N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting out minimum 

and maximum sentences applicable under North Carolina’s 

structured sentencing scheme). When Burrell raised this 

argument in the district court, it was foreclosed by our 

decision in Harp. Subsequently, however, we overruled Harp with 

our en banc decision in Simmons, in which we sustained a similar 

argument in favor of the defendant. See Simmons, 649 F.3d at 

241, 246-47. In view of our holding in Simmons, we grant the 

motion to remand, vacate Burrell’s sentence,2

 2 We of course fault neither the Government nor the district 

court for relying on, and applying, unambiguous circuit 

authority at the time of Burrell’s sentencing.

and remand this 
4

case to the district court for resentencing.3

AFFIRMED IN PART,

 Finally, we affirm 

Burrell’s conviction. 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

 3 Burrell also asserts that he should be resentenced in 

accordance with the Fair Sentencing Act of 2010, Pub. L. No. 

111–220, 124 Stat. 2372 (2010) (codified in scattered sections 

of 21 U.S.C.). Because we are remanding this case for 

resentencing in light of Simmons, we decline to address this 

issue, leaving it instead for the district court to consider in 

the first instance.