United States v. Henry Smith

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4018

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HENRY MONTARIOUS SMITH,

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-00160-WO-1)

Submitted: September 8, 2011 Decided: September 27, 2011

Before MOTZ, KING, 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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:

Henry Montarious Smith was convicted following his

conditional guilty plea to possession of a firearm after

conviction of a crime punishable by more than one year of

imprisonment, in violation of 18 U.S.C. § 922(g)(1) (2006). The

district court sentenced Smith to 180 months of imprisonment.

Smith reserved his right to appeal the district court’s denial

of his motion to dismiss the indictment.

On appeal, Smith argues that his prior North Carolina

state convictions for breaking and entering and attempted

breaking and entering were not punishable by more than one year

of imprisonment and thus are not predicate convictions 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. Smith’s prior

offenses specified in the § 922(g)(1) charge were punishable by

not more than ten 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 Smith raised this argument in the district court,

it was foreclosed by our decision in United States v. Harp, 406

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F.3d 242 (4th Cir. 2005). Subsequently, however, we overruled

Harp with the en banc decision in Simmons, where a similar

argument was presented and sustained in favor of the defendant.

In view of our holding in Simmons, we vacate the district

court’s judgment and remand 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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