United States v. Jeffrey Lewis , 458 F. App'x 238 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4375
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JEFFREY WINSTON LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (7:09-cr-00088-BO-1)
Submitted: November 30, 2011 Decided: December 15, 2011
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
Stephen Clayton Gordon, 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Unpublished opinions are not binding precedent in this circuit.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:
Jeffrey Winston Lewis entered a conditional guilty
plea to being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1) (2006). Lewis reserved his right to
appeal the issue of whether his prior state convictions for
possession with intent to manufacture, sell, and deliver
marijuana, in violation of N.C. Gen. Stat. § 90-95(a)(1) (2009),
and maintaining a dwelling for the purposes of using controlled
substances, in violation of N.C. Gen. Stat. § 90-108(a)(7)
(2009), were punishable by more than one year of imprisonment
and therefore constituted predicate felonies for the § 922(g)
conviction. On consideration of Lewis’s unopposed motion to
vacate his federal conviction, we reverse.
The judgments for the state court convictions,
included in the record below in support of Lewis’s motion to
dismiss the indictment, reveal that Lewis faced a maximum
possible sentence of ten months for each of his prior North
Carolina convictions. At the time that the district court
accepted Lewis’s guilty plea, our decision in United States v.
Harp, 406 F.3d 242, 246 (4th Cir. 2005), dictated that a court,
when determining whether a prior conviction could be considered
as a felony, should “consider the maximum aggravated sentence
that could be imposed for that crime upon a defendant with the
worst possible criminal history.” Harp has since been
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overturned by our decision in United States v. Simmons, 649 F.3d
237 (4th Cir. 2011) (en banc). Simmons holds that a North
Carolina offense may not be classified as a felony based upon
the maximum aggravated sentence that could be imposed upon a
repeat offender if the defendant before the court was not
actually eligible for such a sentence. Id. at 241-46. Because
Lewis was not subject to a sentence exceeding one year for these
predicate convictions, and therefore had no prior felony
convictions, the conduct that formed the basis for his federal
conviction, possessing a firearm, did not violate § 922(g)(1).
Accordingly, we reverse Lewis’s conviction and remand for
further proceedings. *
We deny Lewis’s motion to vacate as moot. 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 reliance on, and application of, unambiguous circuit
authority at the time of Lewis’s indictment and conviction.
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