United States v. Kevin Carter , 471 F. App'x 136 ( 2012 )

ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4764
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN CARTER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:05-cr-00082-1)
Submitted: February 29, 2012 Decided: March 13, 2012
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed in part, reversed in part, vacated and remanded by
unpublished per curiam opinion.
Charles Robinson Brewer, Asheville, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2006, Kevin Carter was found guilty by a federal
jury of possession with intent to distribute cocaine in
violation of 21 U.S.C. § 841(a)(1) (2006) and possession of a
firearm by a convicted felon in violation of 18 U.S.C. § 922(g)
(2006). Based on his previous North Carolina convictions, the
district court designated Carter a career offender under U.S.
Sentencing Guidelines Manual § 4B1.1 (2005). The court imposed
within-Guidelines concurrent sentences of 262 and 120 months’
imprisonment, respectively. Carter appealed and we affirmed the
district court’s judgment. United States v. Carter, 250 F.
App’x 543 (4th Cir. 2007) (per curiam) (unpublished).
Although our mandate originally issued in 2007, we
recently recalled the mandate with the consent of both parties.
Carter now petitions for panel and en banc rehearing based
primarily on our decision in United States v. Simmons, 649 F.3d
237 (4th Cir. 2011) (en banc). Carter contends that, under
Simmons, he has no prior felony convictions. Thus, Carter
asserts that his conviction for felon in possession of a firearm
should be vacated. Moreover, Carter contends that he is not a
career offender for purposes of calculating his Guidelines range
for the cocaine distribution offense.
Under North Carolina’s structured sentencing scheme,
sentences are calculated based on offenders’ criminal history
2
and whether they fall within the mitigated, presumptive, or
aggravated sentencing range. N.C. Gen. Stat. § 15A-1340.17(c)-
(d) (2009). To determine whether a North Carolina offense is a
“crime punishable by imprisonment for a term exceeding one
year,” we focus on the maximum sentence for which the particular
defendant was eligible in light of his criminal history, rather
than the maximum sentence that could be imposed on a defendant
with the worst possible criminal record. Simmons, 649 F.3d at
243. Simmons overruled our prior decision in United States v.
Harp, 406 F.3d 242 (4th Cir. 2005), in which we determined the
term for which an offense was punishable by looking at the
maximum aggravated sentence that could be imposed upon a
defendant with the worst possible criminal history. Simmons,
649 F.3d at 241. Harp was in effect at the time of the district
court’s 2006 judgment and our 2007 opinion.
Carter first raised the argument that his North
Carolina convictions were not felonies in his petition for
rehearing. Although we generally do not consider issues raised
for the first time in a petition for rehearing, we find that the
intervening change in the law wrought by Simmons warrants our
consideration of that issue on rehearing. See United States v.
Pierce, 409 F.3d 228, 235 (4th Cir. 2005) (remanding for
resentencing in light of Booker where Booker issue was raised
for the first time in a petition for rehearing); see also United
3
States v. Byers, 740 F.2d 1104, 1115 n.11 (D.C. Cir. 1984) (en
banc). We therefore turn to an application of Simmons.
Although the state court records are not part of the
record before us, the indictment, 21 U.S.C. § 851 (2006) notice,
and presentence investigation report set forth three prior North
Carolina cocaine-related convictions as Carter’s prior
“felonies.” However, based on the sentences actually imposed,
under the North Carolina sentencing table it appears that Carter
could not have received a sentence of greater than twelve months
for any of his prior convictions. N.C. Gen. Stat. § 15A-
1340.17(c)-(d). Thus, under Simmons, none of these three
convictions were offenses punishable by a term of imprisonment
exceeding one year for the purpose of the federal felon-in-
possession statute. Similarly, the convictions could not
support Carter’s designation as a career offender.
Accordingly, we reverse Carter’s felon in possession
of a firearm conviction. For the reasons set forth in our
October 12, 2007 opinion, we affirm Carter’s cocaine
distribution conviction, but grant panel rehearing and vacate
his sentence for that offense and remand to the district court
for resentencing. Because no member of the court has requested
a poll, Carter’s request for en banc rehearing is denied. We
deny as moot Carter’s motions to vacate and for a briefing
order. We dispense with oral argument because the facts and
4
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED IN PART,
REVERSED IN PART,
VACATED AND REMANDED
5