United States v. Sandako Brandon ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4639
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SANDAKO MESHAWN BRANDON,
Defendant – Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 10-5706)
Submitted: September 29, 2011 Decided: October 5, 2011
Before TRAXLER, Chief Judge, WILKINSON, Circuit Judge, and
HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Christopher R. Clifton, GRACE, TISDALE & CLIFTON, P.A., Winston-
Salem, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, Sandra J. Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Sandako Meshawn Brandon of conspiracy
to distribute cocaine base, in violation of 21 U.S.C. § 846
(2006), and distribution of cocaine base, in violation of 21
U.S.C.A. § 841(a)(1), (b)(1)(A) (West 1999 & Supp. 2011). We
affirmed the district court’s 240-month sentence on the basis of
United States v. Harp, 406 F.3d 242 (4th Cir. 2005). United
States v. Brandon, 376 F. App’x 343 (4th Cir. 2010). The
Supreme Court vacated our opinion and remanded the case for
further consideration in light of Carachuri-Rosendo v. Holder,
130 S. Ct. 2577 (2010). Brandon v. United States, 131 S. Ct.
508 (2010). We vacate Brandon’s sentence and remand for
resentencing.
Brandon argues that the district court improperly
sentenced him as a career offender because the prior controlled
substance offense on which that classification was based was not
punishable by more than one year of imprisonment under North
Carolina law. 1 See N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2007). 2
When Brandon raised this argument in the district court, it was
foreclosed by our decision in Harp, 406 F.3d at 242.
1
Brandon does not dispute that he has been convicted of a
predicate crime of violence.
2
The statute subsequently was amended, but the amendments
do not apply to Brandon.
2
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 which the defendant raised the same
argument. In view of Simmons, we vacate Brandon’s sentence and
remand the case to the district court for resentencing. 3
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 AND REMANDED
3
Because Brandon is entitled to resentencing under Simmons,
we decline to address his additional argument that he is
entitled to resentencing to eliminate the crack/powder
sentencing disparity.
3