United States v. Perry , 384 F. App'x 245 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5062
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTA ERWIN PERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:09-cr-00106-FL-1)
Submitted: June 17, 2010 Decided: June 23, 2010
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
William M. Gilmore, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal grand jury indicted Marta Erwin Perry for
possession of a firearm after having previously been convicted
of a crime punishable by a term of imprisonment exceeding one
year, in violation of 18 U.S.C. § 922(g)(1) (2006). Perry filed
a motion to dismiss the indictment that the district court
denied. Perry then entered a guilty plea to the charge,
reserving his right to appeal the denial of his motion to
dismiss. The court sentenced Perry to eighty-four months of
imprisonment and Perry now appeals. Finding no error, we
affirm.
On appeal, Perry argues that the district court erred
in denying his motion to dismiss the indictment. We review a
district court’s denial of a motion to dismiss an indictment de
novo. United States v. Brandon, 298 F.3d 307, 310 (4th Cir.
2002) (citation omitted); see United States v. Thornton, 554
F.3d 443, 445 (4th Cir. 2009) (reviewing whether state felony
offense is a crime of violence de novo).
Perry argues that he was legally innocent of violating
§ 922(g)(1) because his prior convictions for breaking and
entering, larceny, speeding to elude, and breaking and entering
a vehicle were not punishable by a term of imprisonment
exceeding one year. While Perry’s argument is concededly
foreclosed by United States v. Harp, 406 F.3d 242, 246-47 (4th
2
Cir. 2005), he argues that the subsequent decisions in United
States v. Rodriguez, 553 U.S. 337 (2008), and United States v.
Pruitt, 545 F.3d 416 (6th Cir. 2008), have undermined this
court’s holding in Harp. We have thoroughly reviewed the record
and the relevant legal authorities and conclude that our holding
in Harp is consistent with the Supreme Court’s decision in
Rodriguez. Further, to the extent Pruitt may be inconsistent
with Harp, decisions by our sister circuits are simply not
binding upon this court.
We therefore affirm the judgment of the district
court. 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 in the decisional
process.
AFFIRMED
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