UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5235
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON MICHAEL PARRISH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00112-WO-1)
Submitted: September 6, 2011 Decided: September 13, 2011
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.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,
Robert A. J. Lang, Assistant United States Attorney, Winston-
Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jason Michael Parrish appeals the district court’s
judgment, challenging his conviction for possessing a firearm as
a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006),
asserting that his prior North Carolina convictions were not
felonies inasmuch as they were not punishable for a term of
imprisonment exceeding one year. The district court denied
Parrish’s motion to dismiss the indictment, relying on this
court’s decision in United States v. Harp, 406 F.3d 242, 246
(4th Cir. 2005). Parrish entered a conditional plea of guilty
to the § 922(g)(1) charge, and timely appealed.
This court reviews de novo a district court’s denial
of a motion to dismiss the indictment where denial depends on a
question of law. See United States v. Hatcher, 560 F.3d 222,
224 (4th Cir. 2009). 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 Parrish’s 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
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defendant with the worst possible criminal history.” Harp, 406
F.3d at 246. While Parrish’s appeal was pending, however, Harp
was overruled by our en banc decision in United States v.
Simmons, F.3d , 2011 WL 3607266 (4th Cir. Aug. 17, 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 *8; see
also N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting forth
North Carolina’s structured sentencing scheme). We agree with
Parrish 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 Parrish
was never convicted of a felony punishable by more than one year
of incarceration, he cannot be convicted as a felon in
possession of a firearm under § 922(g)(1). * Accordingly, we
vacate the district court’s judgment and remand for further
proceedings. We dispense with oral argument because the facts
*
We of course do not fault the Government or the district
court for their reliance upon unambiguous circuit authority at
the time of Parrish’s indictment and conviction.
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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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