United States v. Jawaun Smith ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5320
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAWAUN JERMEL SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00019-WO-1)
Submitted: October 14, 2011 Decided: January 4, 2012
Before KING, GREGORY, and DAVIS, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Michael A. DeFranco, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jawaun Jermel Smith 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), but reserved his right to appeal the
issue of whether his prior conviction was punishable by more
than one year of imprisonment. The offense in question was a
prior North Carolina conviction for possession with intent to
sell and deliver cocaine. A defendant with a criminal record
similar to Smith’s faced a maximum possible sentence of less
than one year under North Carolina law for this offense. Smith
appealed, arguing that his prior state conviction was not
“punishable by imprisonment for a term exceeding one year.” The
parties have filed a joint motion to vacate Smith’s conviction.
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). The
reasoning in Simmons applies with equal force to predicate
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convictions as defined in 18 U.S.C. § 922(g)(1). See Carachuri-
Rosendo v. Holder, 130 S. Ct. 2577, 2586-87 (2010)
(distinguishing between “conduct punishable as a felony” and
conviction of a felony offense); Simmons, 649 F.3d at 247
(concluding that the North Carolina Structured Sentencing Act
“creates separate offenses that in turn yield separate maximum
punishments”). Thus, because Smith’s underlying state
conviction was not punishable by a term exceeding one year,
Smith’s conduct that formed the basis for his federal conviction
— possessing a firearm — did not violate § 922(g).
Accordingly, we reverse Smith’s conviction and remand
for further proceedings. We deny the 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
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