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U.S. v. SIMMONS

No. 08-4475.

635 F.3d 140 (2011)

UNITED STATES of America, Plaintiff-Appellee, v. Jason Edward SIMMONS, Defendant-Appellant. North Carolina Advocates for Justice, Amicus Supporting Appellant.

United States Court of Appeals, Fourth Circuit.

Decided: February 16, 2011.

Rehearing En Banc Granted March 18, 2011.

Attorney(s) appearing for the Case

ARGUED: Andrew Brady Banzhoff, Devereux & Banzhoff, PLLC, Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, Office of the United States Attorney, Asheville, North Carolina, for Appellee. ON BRIEF: Anne M. Tompkins, United States Attorney, Adam Morris, Assistant United States Attorney, Office of the United States Attorney, Charlotte, North Carolina, for Appellee. Christopher C. Fialko, Rudolf Widenhouse & Fialko, Charlotte, North Carolina, for Amicus Supporting Appellant.

Affirmed by published opinion. Judge AGEE wrote the opinion, in which Justice O'CONNOR and Judge DUNCAN concurred.

OPINION

AGEE, Circuit Judge:

Jason Edward Simmons challenges the district court's use of a prior North Carolina state conviction for purposes of imposing an enhanced sentence under 21 U.S.C. § 841(b)(1)(D). The case is before us after a remand from the Supreme Court. Simmons v. United States, ___ U.S. ___, 130 S.Ct. 3455, 177 L.Ed.2d 1048 (June 21, 2010). In a previous unpublished per curiam opinion, we concluded...

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