United States of America v. Elias Kaneal Azon, a/k/a Elias Kaneal Azan

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4875
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ELIAS KANEAL AZON, a/k/a Elias Kaneal Azan,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:08-cr-00060-F-1)
Submitted: September 30, 2011 Decided: October 18, 2011
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. George E. B.
Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-
Parker, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Elias Kaneal Azon pled guilty to possession with
intent to distribute more than five grams of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (2006). He was sentenced as
a career offender to 210 months’ imprisonment. On appeal, Azon
contends that he was improperly characterized as a career
offender because he does not have two prior felony convictions
of either a crime of violence or a controlled substance offense,
as required by U.S. Sentencing Guidelines Manual (USSG)
§ 4B1.1(a) (2008). Azon concedes that his 20081
1 Azon was arrested for this offense in 2006 and convicted
in 2008.
North Carolina
conviction for possession with intent to sell and deliver
cocaine is a qualifying predicate conviction. However, he
asserts that his North Carolina controlled substance convictions
in 2004 and 2005 were not punishable by terms of imprisonment
exceeding one year. See id. cmt. n.1 (applying definitions in
USSG § 4B1.2); § 4B1.2(b) (defining “controlled substance
offense”). He reasons that, under the North Carolina Structured
Sentencing Act, his maximum sentence was twelve months, even
applying the aggravated range. See N.C. Gen. Stat. § 15A-

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1340.17(c)-(d) (2007) (applicable to offenses committed on or
after Dec. 1, 1995, and on or before Nov. 30, 2009).2
When Azon raised this argument in the district court,
it was foreclosed by our decision in United States v. Harp, 406
F.3d 242 (4th Cir. 2005). Subsequently, however, we overruled
Harp with our en banc decision in United States v. Simmons, 649
F.3d 237 (4th Cir. 2011) (en banc). In view of Simmons, we
sustain Azon’s objection.
Accordingly, while we affirm Azon’s conviction, which
is not challenged on appeal, we vacate his sentence and remand
to the district court for resentencing.3
AFFIRMED IN PART,
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
2 Subsequent amendments to the statute do not affect this
case.
3 Because we have concluded that Azon is entitled to
resentencing, we find it unnecessary to address his remaining
argument, which challenges the procedural reasonableness of his
sentence.

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