UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4402

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CESAR AUGUSTO GOMEZ ALVARADO,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. Thomas D. Schroeder, 

District Judge. (1:10-cr-00202-TDS-1)

Submitted: October 7, 2011 Decided: October 20, 2011

Before GREGORY, AGEE, and DAVIS, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

Louis C. Allen, III, Federal Public Defender, Mireille P. 

Clough, Assistant Federal Public Defender, Winston-Salem, North 

Carolina, for Appellant. Terri-Lei O’Malley, Assistant United 

States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Cesar Augusto Gomez Alvarado was convicted following 

his guilty plea to illegal reentry by a previously removed 

felon, in violation of 8 U.S.C. § 1326(a), (b)(1) (2006). At 

sentencing, Alvarado challenged whether his prior North Carolina 

breaking and entering conviction qualified as a felony crime of 

violence, as required for the sixteen-level enhancement 

applicable pursuant to U.S. Sentencing Guidelines Manual

§ 2L1.2(b)(1)(A)(ii) (2010), because his sentence for that 

conviction did not exceed twelve months’ imprisonment. The 

district court denied the objection, relying on United States v. 

Harp, 406 F.3d 242, 246 (4th Cir. 2005), and sentenced Alvarado 

to eighty months’ imprisonment. Alvarado timely appealed. 

In his opening brief, Alvarado reasserted his argument 

that his North Carolina breaking and entering conviction was not 

punishable by imprisonment for a term exceeding one year and, 

thus, that the conviction could not serve as the necessary 

predicate for the sixteen-level increase in his base offense 

level. Prior to the completion of briefing, the Government 

moved to remand the case to the district court for resentencing 

in light of United States v. Simmons, 649 F.3d 237 (4th Cir. 

2011) (en banc). Alvarado joins the Government’s motion. We 

grant the motion to remand, vacate Alvarado’s sentence, and 

remand this case to the district court for resentencing. 
3

Further, we affirm Alvarado’s conviction, which is not 

challenged on appeal. 

Alvarado’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 Alvarado 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 Alvarado’s sentence, and remand this 

case to the district court for resentencing.*

AFFIRMED IN PART,

 Further, we affirm 

Alvarado’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

 * We of course do not fault the district court for its 

reliance upon, and application of, unambiguous circuit authority 

at the time of Alvarado’s sentencing.