UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4552
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LEWIS ALSTON,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
Chief District Judge. (5:09-cr-00095-FL-1)
Submitted: September 19, 2011 Decided: September 29, 2011
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished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,
Jennifer P. May-Parker, Rudy E. Renfer, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lewis Alston pleaded guilty to possession with intent
to distribute five grams or more of crack cocaine, in violation
of 21 U.S.C. § 841(a)(1) (2006), and maintaining a place for the
purpose of distributing and using crack cocaine, in violation of
21 U.S.C. § 856(a)(1) (2006). The district court determined
that Alston was accountable for 22.28 grams of crack cocaine,
and that his advisory guideline range was 120 to 150 months’
imprisonment. The court sentenced Alston to 150 months’
imprisonment. Alston appeals, arguing that the district court
erred by converting $928 in cash that was found in Alston’s
apartment to its crack cocaine equivalent and adding it to the
13 grams of crack cocaine actually found. He also argues that
he should not have been subjected to an enhanced sentence under
21 U.S.C. § 851 (2006), because his prior state convictions did
not qualify as felonies. Finally, he argues that the sentence
imposed was substantively unreasonable. For the reasons that
follow, we affirm the judgment, vacate the sentence, and remand
for resentencing.
First, we find no clear error in the district court’s
determination that the money found in Alston’s apartment was
attributable to his drug trafficking activities. United
States v. Kellam, 568 F.3d 125, 147 (4th Cir. 2009) (providing
standard). The $928 included the $20 that had been used by a
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confidential informant to buy drugs from Alston. Further, the
district court noted that there was evidence throughout the
apartment suggesting Alston’s involvement in the drug trade,
including the 13 grams of crack cocaine, a video surveillance
system set up outside the apartment, and a firearm in the
closet. Finally, the district court pointed out that the money
could credibly be linked to drugs because Alston was unemployed
and had no visible means of support. The district court’s
findings are not clearly erroneous. See U.S. Sentencing
Guidelines Manual § 2D1.1, cmt. n.12 (2007); United States v.
Sampson, 140 F.3d 585, 592 (4th Cir. 1998).
Alston’s second argument, however, is meritorious.
Because Alston did not raise this argument below, we review for
plain error. United States v. Lynn, 592 F.3d 572, 577-78 (4th
Cir. 2010). To prevail under the plain error standard, Alston
must show that plain error by the district court affected his
substantial rights. Id. at 577, 580. The district court
applied an enhanced sentence to Alston, pursuant to 21 U.S.C.A.
§§ 841(b)(1)(B), 851 (West 1999 & Supp. 2011), because Alston
had two prior state convictions, one for a Class I felony for
which he had a prior record level of I, and one for a Class I
felony with a prior record level of II. Alston was sentenced
from the presumptive range in both cases, and was therefore
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subject to a maximum sentence of eight months each time. See
N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009).
At the time of Alston’s sentencing, district courts
were required to follow this court’s determination that whether
a prior conviction qualified as a felony for purposes of § 851
was evaluated by considering “the maximum aggravated sentence
that could be imposed for that crime upon a defendant with the
worst possible criminal history.” United States v. Harp, 406
F.3d 242, 246 (4th Cir. 2005). While Alston’s appeal was
pending, however, Harp was overruled by our en banc decision in
United States v. Simmons, ___ F.3d ___, 2011 WL 3607266 (4th
Cir. Aug. 17, 2011) (en banc). Simmons held that a prior North
Carolina offense was punishable for a term exceeding one year
only if the particular defendant before the court had been
eligible for such a sentence under the applicable statutory
scheme, taking into account his criminal history and the nature
of his offense. Id., at *8; see also N.C. Gen. Stat. § 15A-
1340.17(c)–(d). We agree with Alston that, on the record before
us, he was not eligible on either of his North Carolina
convictions to receive a sentence exceeding one year.
Because Simmons directs the conclusion that Alston was
not convicted of a felony punishable by more than one year of
incarceration, he is not subject to the § 851 enhancement.
Because we find that this error affected Alston’s substantial
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rights, we vacate Alston’s sentence and remand the case to the
district court for resentencing. *
Accordingly, we affirm Alston’s judgment, vacate his
sentence, and remand for resentencing in accordance with
Simmons. 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
*
Because Alston will be resentenced, we need not address
his third issue, as to the reasonableness of his sentence.
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