UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4794
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENDRICK MONTRELL COFIELD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:09-cr-00048-BO-1)
Submitted: September 15, 2011 Decided: September 22, 2011
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Ann M.
Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kendrick Montrell Cofield appeals his conviction
following his conditional guilty plea to possession of a firearm
by a convicted felon, 1 in violation of 18 U.S.C. §§ 922(g)(1),
924 (2006). On appeal, Cofield argues that the North Carolina
conviction forming the basis for his federal conviction was not
punishable by more than one year in prison, and therefore he is
not a convicted felon. We agree. Accordingly, we vacate the
judgment and remand with directions that the indictment be
dismissed.
We review de novo a district court’s denial of a
motion to dismiss the indictment where denial depends on a
question of law. United States v. Hatcher, 560 F.3d 222, 224
(4th Cir. 2009). Section 922(g)(1) prohibits 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).
Cofield was charged and convicted consistent with our
decision in United States v. Harp, 406 F.3d 242, 246-47 (4th
Cir. 2005). We recently overruled Harp with our en banc
decision in United States v. Simmons, __ F.3d __, 2011 WL
1
By entering a conditional guilty plea, Cofield preserved
his right to appeal the district court’s denial of his motion to
dismiss his indictment.
2
3607266, at *3 (4th Cir. Aug. 17, 2011), in which we held that a
North Carolina conviction may not be classified as a felony
based upon the maximum aggravated sentence that could be imposed
upon a repeat offender if the particular defendant was not
eligible for such a sentence. Simmons, 2011 WL 3607266, at *8.
As established by his state court judgment, Cofield was not
eligible for a sentence that exceeded one year. Thus, under
Simmons, Cofield’s predicate North Carolina conviction was not
for a crime punishable by more than one year in prison and thus
cannot support his federal indictment. 2
Accordingly, we vacate the judgment and remand with
directions that the district court dismiss the indictment. 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.
VACATED AND REMANDED
2
We of course do not fault the Government or the district
court for their reliance upon, and application of, unambiguous
circuit authority at the time of Cofield’s indictment and
conviction.
3