United States v. Cedric Stanley , 449 F. App'x 249 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4047
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CEDRIC JULES STANLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:08-cr-00235-BR-1)
Submitted: September 15, 2011 Decided: October 6, 2011
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Robert H. Hale, Jr., Daniel M. Blau, ROBERT H. HALE, JR. &
ASSOCIATES, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Jennifer P. May-Parker,
Kristine L. Fritz, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial in September 2010, Cedric Jules
Stanley was found guilty of possessing firearms after having
been convicted of a crime punishable by more than one year in
prison. See 18 U.S.C. §§ 922(g)(1), 924 (2006). On appeal,
Stanley argues that he lacks the predicate felony conviction
necessary to sustain the guilty verdict. Stanley’s argument
hinges on his position that this court’s decision in United
States v. Harp, 406 F.3d 242 (4th Cir. 2005), is no longer good
law. This case was initially put in abeyance for United States
v. Simmons, No. 08-4475, which raised the same legal issue.
Upon the issuance of Simmons, this case was removed from
abeyance and is now ripe. For the reasons that follow, we
vacate the criminal judgment, reverse Stanley’s conviction, and
remand this case to the district court for further proceedings.
Because Stanley stipulated at trial that he had a
prior felony conviction, we will review his claim on appeal for
plain error. To establish plain error, Stanley must show: (1)
there was error; (2) the error was plain; and (3) the error
affected his substantial rights. United States v. Olano, 507
U.S. 725, 732 (1993). If the three elements of the plain error
standard are met, we will exercise our discretion to notice
error only if the error “seriously affects the fairness,
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integrity or public reputation of judicial proceedings.” Id.
(internal quotation marks and alteration omitted).
We first consider whether there is Simmons error in
this case. Pursuant to 18 U.S.C. § 922(g)(1), it is unlawful
for an individual who has been convicted of “a crime punishable
by imprisonment for a term exceeding one year” to possess a
firearm that has moved in or otherwise affected interstate
commerce. Stanley had two prior North Carolina convictions that
qualified as a predicate felony conviction under Harp. 1 Under
North Carolina’s structured sentencing scheme, see N.C. Gen.
Stat. § 15A-1340.17(c)-(d) (2009), the maximum sentence Stanley
could have received for either of these convictions was ten
months’ imprisonment, given his prior record levels. 2 Stanley
thus advances that neither conviction qualifies as a “felony”
1
First, in 1996, Stanley pled guilty in Wayne County
Superior Court to being an accessory after the fact to common
law robbery. Stanley received a sentence of eight to ten
months’ imprisonment, suspended. Next, in 1997, Stanley pled
guilty to possession of cocaine and was again sentenced in the
Wayne County Superior Court, this time to three to four months’
imprisonment, suspended. In accord with then-controlling
circuit precedent, the probation officer designated both of
these convictions as felonies.
2
Stanley submitted copies of his North Carolina judgments
of conviction in conjunction with his appeal. We take judicial
notice of those judgments. See Lolavar v. de Santibanes, 430
F.3d 221, 224 & n.2 (4th Cir. 2005) (taking judicial notice of
state court records).
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because neither was punishable by more than one year
imprisonment.
At the time Stanley initially raised this argument, it
was foreclosed by Harp. In Simmons, the majority of the en banc
panel of this court decided that Harp had been overruled by the
Supreme Court’s opinion in Carachuri-Rosendo v. Holder, 130 S.
Ct 2577 (2010). See Simmons, 649 F.3d 237, 2011 WL 3607266, at
*3, *6-*8 (4th Cir. Aug. 17, 2011) (en banc). In light of
Simmons, we conclude that Stanley does not have a predicate
felony conviction necessary to support his § 922(g) conviction.
Further, the change in the law exacted by Simmons is
sufficient to demonstrate “error” that is “plain.” See Johnson
v. United States, 520 U.S. 461, 467-68 (1997) (“[I]n a case such
as this — where the law at the time of trial was settled and
clearly contrary to the law at the time of appeal — it is enough
that an error be ‘plain’ at the time of appellate
consideration.”). This error also substantially affects
Stanley’s rights because, under the Simmons analysis, his
possession of firearms no longer violates federal law. See
Olano, 507 U.S. at 734 (explaining that for an error to be said
to have affected a defendant’s substantial rights, “[i]t must
have affected the outcome of the district court proceedings”).
Finally, we elect to exercise our discretion to recognize this
error. See id. at 736 (“The court of appeals should no doubt
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correct a plain forfeited error that causes the conviction or
sentencing of an actually innocent defendant.”).
For these reasons, we vacate the criminal judgment,
reverse Stanley’s conviction, and remand this case to the
district court for further proceedings. 3 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.
VACATED AND REMANDED
3
We of course do not fault the Government or the district
court for their reliance upon, and application of, unambiguous
circuit authority at the time of Stanley’s indictment and
conviction.
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