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

**No. 09**  **- 407**  **7**

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. KEVIN LEE JOHNSON, a/k/a Lil KP, a/k/a KP , Defendant

- Appellant
. Appeal from the United States District Court for the We stern District of North Carolina , at Charlotte
. Frank D. Whitney, District Judge. ( 3:07

- cr - 00061

- FDW

- 12 )

Submitted : September 8, 2011 Decided: October 3, 2011

Before NIEMEYER , KING, and SHEDD , Circuit Judges.
Affirmed in part; v acated and remanded in part by un published per curiam opinion

.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston

- Salem, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpubl ished opinions are not binding precedent in this circuit.2 PER CURIAM: Kevin Lee Johnson appeals his conviction and the 240

- month sentence imposed after he pled guilty to drug conspiracy , in violation of 21 U.S.C. §§ 841(b)(1)(A), (B), (C), (D), 846 (200 6). The Government filed an information pursuant to 21
U.S.C. § 851(a)(1) (2006), setting forth two prior North Carolina felony drug convictions, thereby subjecting Johnson to a statutorily mandated minimum term of life imprisonment. Subsequently, based on Johnson’s cooperation, the district court granted the Government’s motion to withdraw one of the prior convictions and sentenced Johnson to the resulting statutorily mandated minimum sentence of 240 months of imprison ment. Johnson appealed.
Couns el has filed a brief in accordance with Anders v. California , 386 U.S. 738 (1967) , noting no meritorious issues for appeal that would invalidate Johnson’s guilty plea

. Johnson filed a pro se supplemental brief and motion to modify his
sentence , challengin g his conviction and sentence on several grounds . The Government declined to file a brief and has not filed a motion to dismiss based on the appellate waiver contained in Johnson’s written plea agreement. We have reviewed the record and conclude that the district court substantially complied with the requirements of Fed. R. Crim. P. 11 and ensured that Johnson’s plea was knowing and voluntary and3 supported by a sufficient factual basis. Consequently, we affirm Johnson’s conviction.
We vacate Johnson’ s sentence , however, and remand for f ur ther proceedings i n light of our recent en banc opinion in United States v. Simmons , 649 F.3d 237 (4th Cir. 2011)

. The present record is not sufficient to allow a determination of whether, after Simmons , Johnson’s pr ior convictions qualify as a felony drug offense for purposes of an enhanced statutory penalty under 21 U.S.C. § § 841(b), 851. We leave this determination to the district court on remand. In accordance with Anders , we have reviewed the entire record in this case and have found one meritorious sentencing issue requiring remand. We therefore affirm Johnson’s conviction , but vacate his sentence and remand to the district court for further proceedings consistent with this opinion. We deny Johnson’s motion to modify his sentence. 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 AND R E MANDED IN PART