United States v. Jason McGaha ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5328
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON ROBERT MCGAHA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever, III,
Chief District Judge. (7:09-cr-00131-D-2)
Submitted: September 28, 2011 Decided: October 14, 2011
Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Richard Croutharmel, Raleigh, North Carolina, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIUM:
Pursuant to a plea agreement, Jason Robert McGaha pled
guilty to possession of a firearm by a convicted felon, and
aiding and abetting, in violation of 18 U.S.C. §§ 922(g)(1),
924(e), 2 (2006). The district court designated McGaha an armed
career criminal, based on several North Carolina state felony
breaking and entering convictions, as well as a North Carolina
state felony conviction for eluding arrest with a motor vehicle
with two aggravating factors, and sentenced him to 192 months’
imprisonment. McGaha timely appealed.
McGaha’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), finding no meritorious grounds
for appeal, but arguing that McGaha’s prior state convictions
were not punishable by more than a year in prison and therefore
he was improperly designated an armed career criminal. 1 McGaha
subsequently filed an unopposed motion to remand for
resentencing in light of United States v. Simmons, ___ F.3d ___,
2011 WL 3607266 (4th Cir. Aug. 17, 2011) (No. 08-4475). For the
reasons that follow, we vacate the criminal judgment, grant the
motion to remand, and remand the case to the district court for
1
Although advised of his right to do so, McGaha did not
file a pro se supplemental brief.
2
reconsideration of McGaha’s conviction and sentence in light of
Simmons.
To qualify for the fifteen year mandatory minimum
punishment under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e), a felon in possession of a firearm must have
three prior convictions for a violent felony or serious drug
offense or both, committed on occasions different from one
another. A qualifying offense must be punishable by a term
exceeding one year. 18 U.S.C. § 924(e)(2)(B). Under North
Carolina’s structured sentencing scheme, sentences are
calculated based on an offender’s criminal history and whether
his offense falls within the mitigated, presumptive, or
aggravated range. N.C. Gen. Stat. § 15A-1340.17(c)-(d) (Lexis
Nexis 2009).
At the time of McGaha’s conviction and sentencing,
existing precedent established that a prior conviction for a
violent felony or serious drug offense was punishable by a
prison term exceeding one year if the maximum aggravated
sentence that could be imposed for that crime upon a defendant
with the worst possible criminal history was more than a year.
United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005).
Recently, however, we overruled Harp with our en banc decision
in United States v. Simmons, 2011 WL 3607266 (4th Cir. Aug. 17,
2011) (No. 08-4475), where we held that a North Carolina offense
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may not be classified as a felony based upon the maximum
aggravated sentence that could be imposed upon a repeat offender
if the individual defendant was not eligible for such a
sentence. Simmons, 2011 WL 3607266, at *3.
McGaha did not receive a sentence exceeding twelve
months for any of his offenses and it is unclear from the record
on appeal whether any of his convictions exposed him to a
sentence exceeding twelve months. 2 Thus, it is unclear from the
record whether McGaha was properly designated an armed career
criminal or even whether he is guilty of the offense to which he
pled guilty. Accordingly, we vacate the criminal judgment,
grant McGaha’s unopposed motion to remand for resentencing, and
remand to the district court for reconsideration of McGaha’s
conviction and sentence in light of Simmons. 3
This court requires that counsel inform McGaha, in
writing, of the right to petition the Supreme Court of the
United States for further review. If McGaha requests that a
petition be filed, but counsel believes that such a petition
2
To the extent that McGaha was convicted of aiding and
abetting a § 922(g) offense, it is unclear from the record on
appeal whether McGaha’s co-defendant qualified as a felon for
purposes of § 922(g).
3
In accordance with Anders, we have reviewed the entire
record in this case and have found no other meritorious issues
for appeal.
4
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on McGaha. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
VACATED AND REMANDED
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