United States v. Kebrae Brown ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4267
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEBRAE ODERO BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (2:10-cr-00019-D-1)
Submitted: September 30, 2011 Decided: October 21, 2011
Before DUNCAN, KEENAN, and DIAZ, 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Reversed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:
Kebrae Odero Brown pled guilty to possessing a firearm
after having been convicted of a crime punishable by
imprisonment for a term exceeding one year in violation of 18
U.S.C. § 922(g)(1) (2006), reserving his right to appeal the
issue of whether his prior state convictions were punishable by
more than one year of imprisonment. The offenses in question
were prior North Carolina convictions for possession of burglary
tools and attempted breaking and entering; for each of these
offenses Brown faced a maximum possible sentence of ten months
under North Carolina law.
Brown appealed, arguing that neither of his prior
convictions was “punishable by imprisonment for a term exceeding
one year” under the Supreme Court’s decision in Carrachuri-
Rosendo v. Holder, 130 S. Ct. 2577 (2010). We recently held
that, when deciding whether a North Carolina conviction is a
predicate offense for sentencing enhancement purposes, the
Controlled Substance Act’s inclusion of offenses “punishable by
imprisonment for more than one year” refers to the maximum
sentence that the defendant in question could have received, not
the sentence that could have been imposed on a defendant with a
more severe criminal history or one subject to an aggravated
sentence. United States v. Simmons, 649 F.3d 237, 241 (4th Cir.
2011) (en banc). Thus, because neither of Brown’s underlying
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North Carolina convictions was punishable by a term exceeding
one year, Brown’s conduct that formed the basis for his federal
conviction — possessing a firearm — did not violate § 922(g).
Accordingly, we reverse Brown’s conviction 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
∗
This disposition conveys no criticism of either the
Government or the district court, both of which dutifully
applied circuit precedent at the time of Brown’s prosecution and
sentencing that was later reversed by Simmons. See United
States v. Harp, 406 F.3d 242 (4th Cir. 2005).
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