UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5082
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAVAR EUGENE SUTTON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00165-TDS-1)
Submitted: September 20, 2011 Decided: September 29, 2011
Before KEENAN and WYNN, 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Vacated and remanded by unpublished per curiam opinion.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. Anna Mills Wagoner, United States
Attorney, Anand P. Ramaswamy, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Javar Eugene Sutton pled guilty to unlawful possession
of a firearm by a convicted felon and was sentenced as an armed
career criminal to a term of 180 months’ imprisonment. See 18
U.S.C. §§ 922(g)(1), 924(e) (2006); U.S. Sentencing Guidelines
Manual § 4B1.4 (2008). On appeal, Sutton contends that one of
his predicate convictions for armed career criminal status was
not punishable by more than one year of imprisonment and
therefore he was incorrectly sentenced as an armed career
criminal. In light of our decision in United States v. Simmons,
___ F.3d ___, 2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en
banc), we vacate the sentence and remand for resentencing.
Under § 924(e), a defendant is an armed career
criminal if he violates § 922(g)(1) and has three prior
convictions for a serious drug offense or a violent felony
“punishable by imprisonment for a term exceeding one year[.]”
See 18 U.S.C. § 924(e)(2)(B). In the district court, Sutton
conceded that he had two predicate convictions, but argued that
his 2005 consolidated convictions for breaking and entering, and
larceny after breaking and entering, for which he received a
sentence of 4-5 months’ imprisonment, could not serve as the
third predicate conviction because neither offense was a
“felony,” as defined in § 922(g) and § 924(e). Under North
Carolina law, both offenses were Class H felonies and Sutton was
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in criminal history category II. Under the North Carolina
structured sentencing scheme, the presumptive range of
punishment for a defendant with a Class H felony in criminal
history category II is 5-6 months. See N.C. Gen. Stat. § 15A-
1340.17(c)-(d). (setting out minimum and maximum sentences
applicable under North Carolina’s structured sentencing regime).
If aggravating factors are found, the maximum sentence is 10-12
months. Sutton argued that, because his sentence was in the
mitigated range of 4-5 months, the judge must have found
mitigating factors, and thus he could not have received a
sentence of more than one year. *
The district court found that Sutton’s argument was
foreclosed by United States v. Harp, 406 F.3d 242, 246 (4th Cir.
2005). The court imposed a sentence of 180 months, below the
Guidelines range, finding that Sutton’s current age and
“relative age at the time the various prior criminal convictions
were incurred” were mitigating factors. Subsequently, we
overruled Harp with an en banc decision in Simmons, sustaining a
similar argument in favor of the defendant.
*
We observe that even if aggravating factors were present,
the maximum sentence for a defendant like Sutton, with a
criminal history category of II, is 12 months imprisonment, and
thus not “more than one year,” as required by § 924(e)(2)(B).
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In light of our holding in Simmons, we vacate the
sentence imposed by the district court and remand 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.
VACATED AND REMANDED
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