United States v. Johnnie Lewis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4823
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNIE O’NEIL LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:09-cr-00368-F-1)
Submitted: September 29, 2011 Decided: October 20, 2011
Before SHEDD, DAVIS, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, 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Unpublished opinions are not binding precedent in this circuit.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:
Johnnie O’Neil Lewis pled guilty to unlawful
possession of a firearm by a convicted felon, 18 U.S.C.
§ 922(g)(1) (2006), and was sentenced to a term of 120 months of
imprisonment. Lewis appeals his sentence, contending that the
district court erred in (1) failing to explain its award of
recency points, U.S. Sentencing Guidelines Manual § 4A1.1(e)
(2009), and (2) finding that he qualified for base offense level
24 under USSG § 2K2.1(a)(2) because of two predicate
convictions, one of which was a 2008 North Carolina drug
trafficking conviction. In light of our recent decision in
United States v. Simmons, 649 F.3d 237, 2011 WL 3607266 (4th
Cir. Aug. 17, 2011) (en banc), we agree with Lewis that the 2008
drug trafficking conviction does not qualify as a felony
conviction. Accordingly, we vacate the sentence and remand for
resentencing.
At sentencing, the district court awarded two criminal
history points under USSG § 4A1.1(e) for recency, as the
Guidelines then required, and declined to vary below the
Guidelines range in anticipation of the 2010 amendment that was
expected to, and later did, eliminate recency points. In
response to Lewis’ recency objection, the court clarified that
the amendment had not yet passed and would go into effect
provided Congress approved it. The court then expressly
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overruled Lewis’ objection. After reviewing the record, we find
that the district court did not err in its application of the
recency Guidelines and adequately considered Lewis’ argument.
See Rita v. United States, 551 U.S. 338, 357–58 (2007) (ruling
that a sentencing court must address any nonfrivolous argument
for imposing a different sentence).
At sentencing, Lewis also objected to the base offense
level of 24 on the ground that his 2008 drug trafficking
conviction did not expose him to a sentence of more than one
year of imprisonment. See § 2K2.1 cmt. n.1 (defining felony
conviction). Lewis maintained that the base offense level
should be 20, pursuant to § 2K2.1(a)(4). The district court
followed United States v. Harp, 406 F.3d 242 (4th Cir. 2005),
overruled Lewis’ objection, and sentenced him within his
Guidelines range to a term of 120 months imprisonment. Harp has
since been overruled by Simmons, which held that, under the
North Carolina structured sentencing scheme, see N.C. Gen. Stat.
§ 15A-1340.17(c)-(d) (2009), the evaluation of whether a
particular conviction was a felony must focus on the maximum
sentence for which a particular defendant was eligible, based on
his own criminal history, rather than the maximum sentence that
could be imposed on a defendant with the worst possible criminal
record. Simmons, 649 F.3d at __, 2011 WL 3607266, at *6.
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Judged by this standard, Lewis’ 2008 conviction does not qualify
as a felony. Resentencing is thus required.
We therefore affirm Lewis’ conviction, vacate his
sentence, and remand for resentencing consistent with Simmons.
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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