UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4955
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEPHON MONTRELL HOOKER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:08-cr-00361-FL-1)
Submitted: September 15, 2011 Decided: September 30, 2011
Before NIEMEYER, AGEE, and DIAZ, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Lauren H. Brennan, Research
and Writing Specialist, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Seth M. Wood, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephon Montrell Hooker was convicted following his
conditional guilty plea to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924
(2006). The district court sentenced Hooker to eighty-seven
months’ imprisonment. Hooker reserved the right to appeal the
district court’s determination that his prior North Carolina
state convictions for embezzlement and obtaining property by
false pretenses qualified as felonies for the purpose of
adjudging him guilty under § 922(g)(1). On appeal, Hooker
argues that neither of these two convictions was punishable by
imprisonment for a term exceeding one year and, thus, the
convictions were not predicate convictions pursuant to 18 U.S.C.
§ 922(g)(1). Hooker also moves to vacate his conviction and
remand the case to the district court. In light of United
States v. Simmons, ___ F.3d ___, No. 08–4475, 2011 WL 3607266
(4th Cir. Aug. 17, 2011) (en banc), we reverse 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. Neither of
Hooker’s prior North Carolina state convictions was punishable
by imprisonment for a term exceeding one year. See N.C. Gen.
Stat. § 15A-1340.17(c)-(d) (2009) (setting out minimum and
maximum sentences applicable under North Carolina’s structured
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sentencing scheme). When Hooker raised this argument in the
district court, it was foreclosed by our decision in United
States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005).
Subsequently, however, we overruled Harp with our en banc
decision in Simmons, in which we sustained a similar argument in
favor of the defendant. In view of our holding in Simmons, we
reverse Hooker’s conviction, deny as moot his motion to vacate,
and remand the case to the district court for further
proceedings. 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.
REVERSED AND REMANDED
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