United States v. Reginald Ross

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5167
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REGINALD RENARD ROSS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00483-JAB-1)
Submitted: September 15, 2011 Decided: September 28, 2011
Before GREGORY, SHEDD, and WYNN, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Michael F.
Joseph, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Reginald Renard Ross of possession of
a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2006). He now appeals the district
court’s judgment, challenging the denial of his motion for
judgment of acquittal on the ground that his prior North
Carolina convictions were not felonies inasmuch as they were not
“punishable for a term of imprisonment exceeding one year.” In
light of our recent decision in United States v. Simmons, ___
F.3d ___, 2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en banc), we
reverse Ross’ conviction and remand for further proceedings.
This appeal turns on § 922(g)(1)’s prohibition of 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
Ross’ indictment and conviction, this court determined whether a
prior conviction qualified as a felony for purposes of
§ 922(g)(1) 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). While Ross’ appeal was pending,
however, Harp was overruled by the en banc decision in Simmons.
See Simmons, 2011 WL 3607266, at *3. Simmons held that a prior
North Carolina offense was punishable for a term exceeding one
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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 *8; see also N.C. Gen. Stat. § 15A-
1340.17(c)-(d) (2009) (setting forth North Carolina’s structured
sentencing scheme). We agree with Ross that, on the record
before us, he was not eligible on his North Carolina convictions
to receive a sentence exceeding one year.
Because Simmons directs the conclusion that Ross was
never convicted of a crime punishable by more than one year of
incarceration, he cannot be convicted as a felon in possession
of a firearm under § 922(g)(1). We of course do not fault the
Government or the district court for their reliance upon
unambiguous circuit authority at the time of Ross’ indictment
and conviction. Accordingly, we reverse Ross’ conviction and
remand for further proceedings. 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.
REVERSED AND REMANDED
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