**UN PUBLISHED** 
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 10**  **- 5139** 

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,
v. TYRAN MATRICE BRACE , Defendant

- Appellant
.

Appeal from the United States District Court for the Western District of North Carolina , at Charlotte
. Martin K. Reidinger , District Judge. ( 3:09

- cr - 00136

- MR

- 1 )

Submitted : September 2 2 , 2011 Decided: September 30 , 2011

Before AGEE and WYNN , Circuit Judges , and HAMILTON, Senior Circuit Judge
.
Reversed a nd remanded by un published per curiam opinion
. Claire J. Rauscher, Executive Director, Ann L. Hester, Angela G. Parrott, Assistant Federal Defender s , Erin K. Taylor, Research and Writing Attorney, Charlotte, North Carolina, for Appellant. Anne M. Tompk ins, United States Attorney, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM: Tyran Matrice Brace pled guilty to possessing a firearm aft er having been convicted of a crime punishable by imprisonment for a term exceeding one year in violation of 18
U.S.C. § 922(g)(1) (2006), reserving his right to appeal the issue of whether his prior conviction was punishable by more than one year of impri sonment . The offense in question was a prior conviction for conspiracy to commit breaking and entering, pursuant to which a defendant with a criminal record similar to
Brace ’s faced a maximum possible sentence of ten months under North Carolina law.
B race appealed, arguing that his prior conviction was not “punishable by imprisonment for a term exceeding one year” under the Supreme Court’s decision in Carrachuri

- Rosendo v. Holder , 130 S. Ct. 2577 (2010)
. We recently held that, when deciding whether a North Carolina conviction is a predicate offense for sentencing enhancement purposes, the Controlled Substance Act’s inclusion of offenses “punishable by imprisonment for more than one year” refers to the maximum sentence that the defe ndant in question cou ld have received, not the sentence that could have been imposed on a defendant with a more severe criminal history or one subject to an aggravated
sentence. United States v. Simmons , No. 08

- 4475,

___ F.3d

___ , 2011 WL 3607266, at *3 (4th Cir. Aug. 17, 201 1) (en banc) . The3 reasoning in Simmons applies with equal force to predicate convictions as defined in 18 U.S.C. § 922(g)(1). See Carachuri

Rosendo , 130 S. Ct. at 2586

- 87 (distinguishing between “conduct punishable as a felony” and conviction of a felony offense); Simmons

Accordingly, we reverse Brace’s conviction and
sentence and remand for further proceedings
. , 2011 WL 3607266 , at *8 (concluding that the North Carolina Structured Sentencing Act “creates separate offenses that in turn yield separate maximum punishments”). Thus, because Brace’s underlying conviction was not punishable by a
term excee ding one year, Brace’s conduct

— possess ing a firearm

— did not violate § 922(g).

* 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.

* This disposition conveys no criticism of either the Government or the district court, both of which dutifully applied ci rcuit precedent at the time of Brace’s prosecution and sentencing that was then authoritative but that was later reversed by Simmons
. See United States v. Harp , 406 F.3d 242 (4th Cir. 2005). REVERSED AND REMANDED