United States v. Morey Champion ( 2011 )

ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5084
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MOREY BERNAL CHAMPION,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:08-cr-00381-FL-1)
Submitted: September 30, 2011 Decided: October 18, 2011
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Reversed and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, 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, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Morey Bernal Champion pleaded guilty to possession of
a firearm after having previously been convicted of a crime
punishable by a term of imprisonment exceeding one year, in
violation of 18 U.S.C. § 922(g)(1) (2006), conditioned on his
appeal of the district court’s denial of his motion to dismiss
the indictment. The district court sentenced Champion to
fifty-one months of imprisonment. This court affirmed his
conviction on appeal in reliance upon our decision in United
States v. Harp, 406 F.3d 242 (4th Cir. 2005). See United
States v. Champion, 384 F. App’x 245 (2010) (unpublished). We
subsequently granted Champion’s petition for rehearing, based
upon the Supreme Court’s decision in Carachuri-Rosendo v.
Holder, 130 S. Ct. 2577 (2010). Champion has now filed a motion
to vacate his conviction based on this court’s recent decision
in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc). For the reasons that follow, we reverse Champion’s
conviction.
Champion’s prior conviction for possession with intent
to deliver marijuana was a Class I felony under North Carolina
law. Moreover, at the time of his conviction, his prior record
level was I. Under North Carolina law, the maximum term of
imprisonment for a Class I felony with a record level of I and
no finding by the sentencing court of aggravating or mitigating
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factors is eight months. See N.C. Gen. Stat. § 15A-1340.17(c),
(d) (2007). Therefore, Champion could not have received a term
of imprisonment exceeding twelve months for his prior
conviction.
In Simmons, we determined that an offense is not
punishable by a term exceeding one year of imprisonment if the
defendant could not have actually received more than one year of
imprisonment for that offense, based on his prior criminal
history and other factors. As Champion could not have received
a term exceeding one year of imprisonment for his prior offense,
he did not have a qualifying predicate offense for a conviction
under § 922(g)(1). Therefore, Champion is innocent of the
offense of conviction.
Accordingly, we reverse the judgment, deny Champion’s
motion as moot, and remand for further proceedings. The clerk
is directed to issue the mandate forthwith. 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.
REVERSED AND REMANDED
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