UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4096
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY THOMAS RHODES,
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-00159-WO-1)
Submitted: September 12, 2011 Decided: September 14, 2011
Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Charles H. Harp, II, CHARLES H. HARP, II, P.C., Lexington, 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Unpublished opinions are not binding precedent in this circuit.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:
Anthony Thomas Rhodes appeals his 180 month sentence
for being a convicted felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2006). We find
that Rhodes’s 1999 North Carolina breaking and entering
conviction was not punishable by a term exceeding one year;
thus, Rhodes lacks the three predicate violent felony or serious
drug convictions necessary to trigger the fifteen year mandatory
minimum sentence prescribed by 18 U.S.C. § 924(e).
Under North Carolina’s structured sentencing regime,
Rhodes could not have received a custodial sentence of more than
one year for his breaking and entering conviction given his
criminal history. Therefore, this conviction does not qualify
as a “violent felony” for purposes of 18 U.S.C. § 924(e)(2)(B).
When the district court fixed his sentence, this argument was
foreclosed by our decision in United States v. Harp, 406 F.3d
242 (4th Cir. 2005). Subsequently, however, we overruled Harp
with our en banc decision in United States v. Simmons, __ F.3d
__, 2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en banc).
Pursuant to the dictates of Simmons, we find merit in Rhodes’s
appeal.
Accordingly, the district court’s judgment is affirmed
as to the conviction, vacated as to the sentence, and the case
is remanded for resentencing. We dispense with oral argument
2
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
3