ON REHEARING

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4881

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHRISTOPHER TERRELL SHORT,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Durham. William L. Osteen, Sr., 

Senior District Judge. (1:07-cr-00084-WLO)

Submitted: April 12, 2010 Decided: October 28, 2011

Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit 

Judges.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville, 

North Carolina, for Appellant. Sandra Jane Hairston, Assistant 

United States Attorney, Greensboro, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Pursuant to a plea agreement, Christopher Terrell 

Short pled guilty to possession with intent to distribute 1000.2 

grams of cocaine hydrochloride, in violation of 21 U.S.C. 

§ 841(a)(1) (2006). The district court sentenced him as a 

career offender to a 190-month term of imprisonment. On appeal, 

Short’s counsel filed a brief pursuant to Anders v. California, 

386 U.S. 738 (1967), stating that there were no meritorious 

issues for appeal but questioning the procedural reasonableness 

of Short’s sentence. Short filed a pro se supplemental brief. 

In our initial opinion, we affirmed the district court’s 

judgment. We previously granted Short’s petition for panel 

rehearing and now affirm the conviction, vacate the sentence, 

and remand for resentencing.

Although neither Short nor his counsel challenges the 

adequacy of plea hearing on appeal, we have reviewed the 

transcript of the plea hearing for plain error. See United 

States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (providing 

standard). Our careful review of the record convinces us that 

the district court substantially complied with the mandates of 

Fed. R. Crim. P. 11 in accepting Short’s guilty plea and that 

any omission on the court’s part did not affect Short’s 

substantial rights. Moreover, the district court ensured that 

Short’s guilty plea was knowing and voluntary and supported by a 
3

sufficient factual basis. See United States v. DeFusco, 949 

F.2d 114, 116, 119-20 (4th Cir. 1991). 

Short and his counsel question the procedural 

reasonableness of Short’s sentence. We review a sentence for 

reasonableness under an abuse-of-discretion standard. Gall v. 

United States, 552 U.S. 38, 51 (2007). This review requires 

appellate consideration of both the procedural and substantive 

reasonableness of a sentence. Id. This court assesses 

procedural reasonableness by determining whether the district 

court properly calculated the advisory Guidelines range, 

considered the factors in 18 U.S.C. § 3553(a) (2006), analyzed 

any arguments presented by the parties, and sufficiently 

explained the selected sentence. Gall, 552 U.S. at 49-50; see

United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010). 

Finally, if there is no significant procedural error, this court 

reviews the substantive reasonableness of the sentence. United 

States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010).

Short asserts that his prior North Carolina 

convictions for possession with intent to sell and deliver 

cocaine were not felonies because he was subject to a maximum 

sentence of less than twelve months. He therefore argues that 

these prior convictions should not have been used to classify 

him as a career offender. Because Short did not advance this 

argument in the district court, our review is for plain error. 
4

See United States v. Slade, 631 F.3d 185, 189 (4th Cir.)

(discussing standard), cert. denied, 131 S. Ct. 2943 (2011); 

United States v. Knight, 606 F.3d 171, 177-78 (4th Cir. 2010) 

(same). 

We initially rejected Short’s challenge to his career 

offender designation based upon our prior ruling in United 

States v. Harp, 406 F.3d 242 (4th Cir. 2005). However, in our 

recent en banc decision in United States v. Simmons, 649 F.3d

237, 2011 WL 3607266 (4th Cir. Aug. 17, 2011) (No. 08-4475), we 

overruled Harp and held that, under North Carolina’s statutory 

sentencing scheme, a defendant is convicted of a crime 

punishable by more than one year only if an offender with the 

same prior record level and convicted of similar aggravating 

factors could have received a sentence exceeding one year. Id.

at *5-*9. In making this determination, a court must consider 

the defendant’s particular “state record of conviction.” Id. at 

*9. 

The state court judgment of conviction entered against 

Short indicates that his prior convictions for possession with 

intent to sell and deliver cocaine were classified as Class H 

felonies. In addition, Short had a prior record level of III 

and was not charged with any aggravating factors. Given these 

facts, Short could have been sentenced to a presumptive minimum 

term of eight to ten months or a mitigated minimum term of six
5

to eight months. See N.C. Gen. Stat. § 15A-1340.17(c) (2009). 

The state court applied the mitigated range, sentencing Short to 

a minimum term of six months and a maximum term of eight months. 

See N.C. Gen. Stat. § 15A-1340.17(d) (2009). 

Applying the Simmons holding here, we conclude that 

North Carolina’s statutory sentencing scheme allowed the state 

court to impose a maximum possible sentence in the mitigated 

range of ten months. See N.C. Gen. Stat. § 15A-1340.17(d) 

(2009). Thus, neither of Short’s convictions for possession 

with intent to sell and deliver cocaine qualified as a predicate 

offense for career offender purposes. Because it is now clear 

that Short was sentenced improperly as a career offender,1 we 

vacate his sentence and remand for resentencing.2

 1 The district court, of course, did not have the benefit of 

our decision in Simmons at the time it sentenced Short. 

 See United 

States v. Lewis, 606 F.3d 193, 201 (4th Cir. 2010) (“[This Court 

has] emphasized that [a] sentence based on an improperly 

2 In light of our holding, we need not address Short’s 

claims that the prior convictions should have been counted as a 

single sentence, that Amendment 709 to the Sentencing Guidelines 

applied to his case, and that the district court failed to 

adequately explain its reasons for imposing a 190-month career 

offender sentence and failed to depart downward on the ground 

that the career offender Guidelines range overstated Short’s 

criminal history. To the extent counsel also attempts to 

challenge the validity of Short’s January 31, 2001 predicate 

offense, he may not do so in this appeal. See Custis v. United 

States, 511 U.S. 485, 493-97 (1994).
6

calculated [G]uidelines range will be found unreasonable and 

vacated.”) (internal quotation marks omitted). 

In accordance with Anders, we have reviewed the entire 

record for any other meritorious issues and have found none. We 

therefore affirm Short’s conviction, vacate his sentence, and 

remand for resentencing. This court requires that counsel 

inform his client, in writing, of the right to petition the 

Supreme Court of the United States for further review. If the 

client requests that a petition be filed, but counsel believes 

that such a petition would be frivolous, then counsel may move 

in this court for leave to withdraw from representation. 

Counsel’s motion must state that a copy thereof was served on 

the client. 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.

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED