United States v. Eric Spanger , 458 F. App'x 237 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4316
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC ROCHAT SPANGER,
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. (3:10-cr-00021-RJC-1)
Submitted: November 29, 2011 Decided: December 15, 2011
Before KING, KEENAN, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
John J. Cacheris, LAW OFFICE OF JOHN J. CACHERIS, P.C.,
Charlotte, 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Unpublished opinions are not binding precedent in this circuit.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:
Eric Rochat Spanger appeals his 180-month sentence
following his guilty plea to one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006). On appeal, Spanger argues that the district
court erred in sentencing him as an armed career criminal
because the prior convictions on which that status was based —
Spanger’s four North Carolina state convictions for breaking and
entering — were not punishable by imprisonment for terms
exceeding one year. Following the filing of Spanger’s opening
appellate brief, the Government filed an unopposed motion to
remand this case for resentencing in light of United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). We affirm
Spanger’s conviction, vacate his sentence, and remand for
resentencing.
A defendant is properly designated an armed career
criminal if he is subject to the enhanced sentence under the
provisions of 18 U.S.C. § 924(e) (2006). U.S. Sentencing
Guidelines Manual § 4B1.4(a) (2010). The enhanced sentence
under 18 U.S.C. § 924(e) applies to a defendant who violates
18 U.S.C. § 922(g) and has “three previous convictions . . . for
a violent felony or a serious drug offense, or both.” 18 U.S.C.
§ 924(e)(1). To qualify as a “violent felony,” the conviction
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at issue must be “punishable by imprisonment for a term
exceeding one year.” Id. § 924(e)(2)(B).
Spanger argues that his prior state convictions for
breaking and entering were not punishable by terms of
imprisonment exceeding one year. See N.C. Gen. Stat.
§ 15A-1340.17(c)-(d) (2009) (setting forth minimum and maximum
sentences applicable under the North Carolina Structured
Sentencing Act). When Spanger raised this argument in the
district court, it was foreclosed by our panel decisions in
United States v. Simmons, 635 F.3d 140, 146 (4th Cir. 2011)
(holding that, to determine whether a North Carolina conviction
for a crime is punishable by a prison term exceeding one year, a
court is to “consider the maximum aggravated sentence that could
be imposed for that crime upon a defendant with the worst
possible criminal history” (internal quotation marks and
emphasis omitted)), and United States v. Harp, 406 F.3d 242, 246
(4th Cir. 2005) (same). The en banc decision in Simmons
reversed this precedent, holding that a prior North Carolina
offense is punishable by imprisonment for a term exceeding one
year only if the particular defendant is eligible for such a
sentence under the applicable statutory scheme, taking into
account his criminal history and the nature of his offense.
Simmons, 649 F.3d at 241-47.
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Applying the en banc decision in Simmons here, we
conclude after review of the state judgment that Spanger’s prior
North Carolina convictions were not punishable by terms of
imprisonment exceeding one year. The offenses were class H
felonies. N.C. Gen. Stat. § 14-54(a) (2009). Additionally, the
state judgment reveals that Spanger had eight prior record
points — resulting in a prior record level of III — and that
Spanger was sentenced in the presumptive range. Under the North
Carolina Structured Sentencing Act, Spanger could not have been
imprisoned for terms exceeding one year for his prior
convictions. N.C. Gen. Stat. §§ 15A-1340.14(c)(3), -
1340.17(c)-(d) (2009). The convictions were therefore not
proper predicate convictions for purposes of 18 U.S.C. § 924(e).
Accordingly, we grant the Government’s motion, vacate
Spanger’s sentence, and remand the case to the district court
for resentencing. Spanger does not challenge his conviction on
appeal, and we therefore affirm it. 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.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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