United States v. Keron McHugh , 458 F. App'x 288 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4950
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KERON TIMOTHY MCHUGH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00405-TDS-1)
Submitted: December 16, 2011 Decided: December 20, 2011
Before MOTZ, KING, and DAVIS, Circuit Judges.
Vacated, reversed in part, and remanded by unpublished per
curiam opinion.
Seth Allen Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North
Carolina, for Appellant. Clifton Thomas Barrett, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keron Timothy McHugh pled guilty to four counts of
being a felon in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1), 924 (2006), distribution of cocaine, in
violation of 21 U.S.C. § 841(a)(1) (2006), and carrying and use
of a firearm during and in relation to a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A)(1) (2006). The
§ 922(g) charges were supported by McHugh’s prior North Carolina
convictions for larceny of a firearm and breaking and entering a
motor vehicle. On account of his prior record, McHugh faced a
maximum possible sentence of less than one year under North
Carolina law for his predicate state offenses. McHugh appealed,
and has filed an unopposed motion to vacate and remand, arguing
that his prior state convictions were not “punishable by
imprisonment for a term exceeding one year.”
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
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reasoning in Simmons applies with equal force to predicate
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 McHugh’s underlying state
convictions were not punishable by a term exceeding one year,
McHugh’s conduct that formed the basis for his federal
conviction — possessing a firearm — did not violate § 922(g).
Accordingly, we grant McHugh’s motion, vacate the
district court’s judgment, reverse McHugh’s § 922(g) convictions
and remand for further proceedings. 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,
REVERSED IN PART,
AND REMANDED
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