United States v. Terrell Jones , 459 F. App'x 247 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4813
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRELL LEE JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:10-cr-00284-BR-1)
Submitted: December 20, 2011 Decided: December 22,2011
Before MOTZ, DUNCAN, and DIAZ, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
G. Alan DuBois, Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.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 CURIAM:
Terrell Lee Jones was convicted following his
conditional guilty plea to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006).
The district court sentenced Jones to forty-six months’
imprisonment. Jones reserved the right to appeal the district
court’s determination that his prior North Carolina conviction
for attempted larceny from the person qualified as a felony for
the purpose of adjudging him guilty under § 922(g)(1). Jones
timely appealed. Prior to submitting an opening brief, Jones
moved to vacate his conviction and to remand the case to the
district court, arguing that his North Carolina conviction was
not punishable by imprisonment for a term exceeding one year
and, thus, that the conviction could not serve as the necessary
predicate for the § 922(g)(1) charge. The Government does not
oppose Jones’ motion. In light of our decision in United States
v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), we reverse
and remand.
Under 18 U.S.C. § 922(g)(1), it is unlawful for any
person convicted of a crime punishable by imprisonment for a
term exceeding one year to possess a firearm. Jones’ prior
North Carolina conviction was not punishable by imprisonment for
a term exceeding one year. See N.C. Gen. Stat. § 15A-
1340.17(c)-(d) (2009) (setting out minimum and maximum sentences
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applicable under North Carolina’s structured sentencing scheme).
When Jones raised this argument in the district court, it was
foreclosed by our decision in United States v. Harp, 406 F.3d
242, 246 (4th Cir. 2005). Subsequently, however, we overruled
Harp with our en banc decision in Simmons, in which we sustained
a similar argument in favor of the defendant. In view of our
holding in Simmons, we reverse Jones’ conviction, deny as moot
his motion to vacate, and remand the case to the district court
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
*
We of course do not fault the Government or the district
court for their reliance upon, and application of, unambiguous
circuit authority at the time of Jones’ indictment and
conviction.
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