United States v. Tadarian Neal , 458 F. App'x 246 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5043
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TADARIAN RESHAWN NEAL,
Defendant - Appellant.
No. 09-5044
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TADARIAN RESHAWN NEAL,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:09-cr-00017-FDW-DCK-1; 3:04-cr-00073-FDW-1)
Submitted: December 13, 2011 Decided: December 16, 2011
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated cases, Tadarian Reshawn Neal
appeals both the 168-month sentence imposed after his
convictions on all counts of a four-count indictment, as well as
the twenty-four-month consecutive sentence imposed for his
violation of the conditions of supervised release that were
imposed on his 2005 federal felon-in-possession conviction. We
affirm.
Neal first claims that his conviction under 18 U.S.C.
§ 922(g)(1) (2006) for possessing a firearm as a convicted felon
is invalid because it is based on a 2005 felon-in-possession
conviction which is itself infirm under our recent
jurisprudence. Our review is de novo. See Suter v. United
States, 441 F.3d 306, 310 (4th Cir. 2006).
Pertinent to this appeal, § 922(g)(1) prohibits the
possession of a firearm by any person “who has been convicted in
any court of, a crime punishable by imprisonment for a term
exceeding one year.” 18 U.S.C. § 922(g)(1). At the time of
Neal’s conviction and sentence, we determined whether a prior
conviction was punishable by more than a year’s imprisonment by
considering “the maximum aggravated sentence that could be
imposed for that crime upon a defendant with the worst possible
criminal history.” United States v. Harp, 406 F.3d 242, 246
(4th Cir. 2005). After Neal was sentenced, however, Harp was
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overruled by the en banc decision in Simmons. See United
States v. Simmons, 649 F.3d 237, 241 (4th Cir. 2011) (en banc).
Simmons held that a prior North Carolina offense was punishable
for a term exceeding one year only if the particular defendant
before the court had been eligible for such a sentence under the
applicable statutory scheme, taking into account his criminal
history and the nature of his offense. Id. at 247; see also
N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting forth North
Carolina’s structured sentencing scheme).
Neal now argues that both of the North Carolina
convictions that served as the predicates for his 2005 felon-in-
possession conviction are not “felonies” under the rationale
announced in Simmons. (J.A. 878-79). As a result, claims Neal,
his 2005 felon-in-possession conviction is invalid. According
to Neal, because his current § 922(g)(1) conviction is
predicated on the now infirm 2005 felon-in-possession
conviction, his present § 922(g)(1) conviction cannot stand.
Neal is mistaken. This court squarely rejected this
line of argument in United States v. Kahoe, 134 F.3d 1230 (4th
Cir. 1998), holding that any subsequently-realized invalidity of
a predicate felony conviction is immaterial to a § 922(g)(1)
prosecution, as long as the prior conviction was in effect on
the date that the defendant possessed the firearm. Id. at 1235.
In this case, there is no dispute that Neal’s 2005 felon-in-
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possession conviction was both punishable by more than a year
and was in effect on August 18, 2008, when he possessed the
sawed-off shotgun that is the subject of his current § 922(g)(1)
conviction. As a result, his current § 922(g)(1) conviction is
proper, notwithstanding the possible effects of Simmons on his
previous conviction.
Neal next asserts that, because Simmons suggests that
his 2005 felon-in-possession conviction was in error, the
district court erred in imposing a prison sentence for his
violation of the conditions of supervised release attendant to
that offense. But, even assuming that Neal has not waived this
strand of argument, it amounts to an attempt to collaterally
attack his 2005 felon-in-possession conviction. Of course, “the
validity of an underlying conviction or sentence may not be
collaterally attacked in a supervised release revocation
proceeding and may be challenged only on direct appeal or
through a habeas corpus proceeding.” United States v. Warren,
335 F.3d 76, 78 (2d Cir. 2003) (collecting cases).
Consequently, we can only conclude that Neal’s present claims,
which seek to elude the sentence imposed upon his violation of
the conditions of supervised release by vacating the underlying
2005 felon-in-possession conviction, are not properly before
this court.
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Third, Neal attacks his convictions for obstruction of
justice, in violation of 18 U.S.C. § 1503 (2006), and for
witness tampering, in violation of 18 U.S.C. § 1512(b)(1)
(2006), on the ground that the indictment failed to set forth
sufficient factual allegations regarding the nature of the
offenses. We agree with the Government that Neal waived these
challenges to the indictment by failing to raise them in the
district court prior to trial. See Fed. R. Crim. P. 12(e);
United States v. Robinson, 627 F.3d 941, 957 (4th Cir. 2010).
Finally, Neal argues that his punishments for both
obstruction of justice and witness tampering violate principles
of double jeopardy, given that they are predicated on the same
underlying conduct. We review questions of double jeopardy de
novo. See United States v. Brown, 202 F.3d 691, 703 (4th Cir.
2000). “Where the issue is solely that of multiple punishment,
as opposed to multiple prosecutions, the Double Jeopardy Clause
does no more than prevent the sentencing court from prescribing
greater punishment than the legislature intended.” United
States v. Studifin, 240 F.3d 415, 418 (4th Cir. 2001) (internal
quotation marks omitted). “The same conduct can support
convictions and sentencing under two different federal statutes
as long as each statute requires proof of an element that the
other does not.” United States v. Johnson, 219 F.3d 349, 358
(4th Cir. 2000). Moreover, “[i]f the elements of the two
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statutes do not necessarily overlap, then multiple punishments
are presumed to be authorized absent a clear showing of contrary
Congressional intent.” Id. at 359 (internal quotation marks
omitted).
In this case, each offense of conviction requires
proof of an element that the other does not. See United
States v. LeMoure, 474 F.3d 37, 44 (1st Cir. 2007). Neal has
made no showing defeating the presumptive availability of
multiple punishments for these separate offenses. His
punishment under both § 1503 and § 1512 for the same underlying
course of conduct therefore poses no double jeopardy concerns.
Accordingly, we affirm the judgments of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the material
before the court and argument will not aid the decisional
process.
AFFIRMED
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