UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4965
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES LOUIS THOMAS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas David
Schroeder, District Judge. (1:09-cr-00360-TDS-1)
Submitted: August 30, 2011 Decided: September 2, 2011
Before KING, GREGORY, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, William C. Ingram,
First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Graham T. Green, Assistant United States Attorney, Winston-
Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Louis Thomas was convicted following his
conditional guilty plea to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006).
The district court sentenced Thomas to sixty-nine months of
imprisonment. Thomas reserved his right to appeal the district
court’s denial of his motion to dismiss the § 922(g)(1) charge.
On appeal, Thomas argues that his prior North Carolina
state conviction for possession of marijuana with intent to
distribute was not punishable by more than one year of
imprisonment and thus is not a predicate conviction pursuant to
18 U.S.C. § 922(g)(1). In light of United States v. Simmons,
F.3d , 2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en banc),
we vacate and remand.
Under 18 U.S.C. § 922(g)(1), it is unlawful for any
person convicted of a crime punishable by imprisonment for a
term exceeding one year to possess a firearm. As to the prior
drug offense specified in the § 922(g)(1) charge, Thomas was
punishable by no more than eight months’ imprisonment. See N.C.
Gen. Stat. § 15A-1340.17(c)-(d) (setting out minimum and maximum
sentences applicable under North Carolina’s “structured
sentencing” regime). When Thomas raised this argument in the
district court, it was foreclosed by our decision in United
States v. Harp, 406 F.3d 242 (4th Cir. 2005). Subsequently,
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however, we overruled Harp with the en banc decision in Simmons,
in which we sustained a similar argument in favor of the
defendant. In view of our holding in Simmons, we vacate the
district court’s judgment and remand the case to the district
court for proceedings consistent with this opinion.
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 AND REMANDED
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