UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4672
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STANFORD DEWAYNE CARSTARPHEN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:09-cr-00317-TDS-1)
Submitted: September 21, 2011 Decided: September 28, 2011
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. John W. Stone, Jr., Acting United
States Attorney, Lisa B. Boggs, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stanford DeWayne Carstarphen pled guilty pursuant to a
written plea agreement to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(e) (2006). At Carstarphen’s Rule 11 hearing, he reserved
the right to challenge application of the Armed Career Criminal
Act. At sentencing, Carstarphen’s counsel objected to the
presentence report’s recommendation that Carstarphen be
sentenced as an armed career criminal, pursuant to 18 U.S.C.
§ 924(e). Specifically, Carstarphen claimed that one of his
prior convictions should not count as a felony because under the
North Carolina Structured Sentencing Act he could not have
received a sentence in excess of one year due to his prior
record level. N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009).
Carstarphen acknowledged that this argument was then foreclosed
by this court’s decision in United States v. Harp, 406 F.3d 242
(4th Cir. 2005), but argued that Harp should be overruled.
On appeal, the only issue Carstarphen raises is
whether he should have been sentenced as an armed career
criminal and therefore subject to enhanced penalties. Section
924(e) subjects a violator of section 922 to enhanced penalties
if he has “three previous convictions by any court . . . for a
violent felony or serious drug offense, or both.” 18 U.S.C.
§ 924(e)(1). A “violent felony” must, among other requirements,
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be “punishable by imprisonment for a term exceeding one year.”
18 U.S.C. § 924(e)(2)(B). The record and state law support
Carstarphen’s contention that his prior offense was punishable
by no more than eight months’ imprisonment. When Carstarphen
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, however, we overruled Harp with our en
banc decision in United States v. Simmons, __ F.3d __, 2011 WL
3607266 (4th Cir. 2011) (en banc).
Because Carstarphen has not challenged his conviction
on appeal, we affirm his conviction. In light of our decision
in Simmons, we conclude that Carstarphen’s argument on appeal
has merit. Therefore, we vacate Carstarphen’s sentence and
remand the case to the district court for resentencing. ∗ 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.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
∗
We of course do not fault the Government or the district
court for their reliance on, and application of, unambiguous
circuit authority at the time of Carstarphen’s sentencing.
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