UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4732

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHRISTIAN MANUEL LOPEZ-PEREZ, a/k/a Jose Manuel Lopez,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. William L. Osteen, 

Jr., District Judge. (1:10-cr-00103-WO-1)

Submitted: December 20, 2011 Decided: January 3, 2012

Before KING, AGEE, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

Raymond J. Rigat, Washington, D.C., for Appellant. Angela 

Hewlett Miller, Assistant United States Attorney, Arnold L. 

Husser, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Christian Manuel Lopez-Perez appeals his twenty-sevenmonth sentence following a guilty plea to reentry after 

deportation for a felony, in violation of 8 U.S.C. § 1326(a), 

(b)(1) (2006). On appeal, Lopez-Perez argues that the district 

court erred in applying a four-level sentencing enhancement, 

pursuant to the U.S. Sentencing Guidelines Manual (“USSG”) 

§ 2L1.2(b)(1)(D) (2010), for being deported after a conviction 

for a felony. Following the filing of Lopez-Perez’s opening 

Appellant’s Brief, the Government filed an unopposed motion to 

remand for resentencing in light of United States v. Simmons, 

649 F.3d 237 (4th Cir. 2011) (en banc). We affirm Lopez-Perez’s 

conviction, vacate his sentence, and remand for resentencing. 

Section 2L1.2(b)(1)(D) of the Sentencing Guidelines 

Manual prescribes a four-level offense enhancement “[i]f the 

defendant was deported, or unlawfully remained in the United 

States, after a conviction for any other felony.” USSG 

§ 2L1.2(b)(1)(D). For purposes of subsection (b)(1)(D), the 

Guidelines Manual defines a felony as “any federal, state, or 

local offense punishable by imprisonment for a term exceeding 

one year.” Id. § 2L1.2 cmt. n.2. 

On appeal, Lopez-Perez argues that his North Carolina 

state convictions for breaking and entering, larceny following 

breaking and entering, and conspiracy to commit breaking and 
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entering do not qualify as felonies because his convictions were 

not punishable by imprisonment for terms exceeding one year. 

Consistent with this court’s decision in United States v. Harp, 

406 F.3d 242, 246 (4th Cir. 2005), the district court determined 

that Lopez-Perez qualified for the four-level sentencing 

enhancement set forth in USSG § 2L1.2(b)(1)(D) based upon his 

three prior North Carolina felony convictions. Subsequent to 

the district court’s sentencing determination, we overruled Harp

in our en banc decision in Simmons, finding that a North 

Carolina state conviction may not be classified as a conviction 

punishable by a term of imprisonment exceeding one year based on 

the maximum aggravated sentence that could be imposed on a 

repeat offender if the individual defendant was not himself 

eligible for such a sentence. Simmons, 649 F.3d at 241, 243-48. 

Our review of the record reveals that Lopez-Perez was not 

eligible for a sentence exceeding one year for his North 

Carolina convictions. Accordingly, applying Simmons, LopezPerez’s convictions no longer qualify as predicate felony 

convictions, and he is ineligible for the § 2L1.2(B)(1)(D) 

sentencing enhancement. 

We therefore grant the Government’s motion, vacate 

Lopez-Perez’s sentence, and remand the case to the district 

court for resentencing. Lopez-Perez does not challenge his 

conviction on appeal, and we therefore affirm it. We dispense 
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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