UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5070
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CORNELL BREON RILLEY HARPER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Fox, Senior
District Judge. (4:10-cr-00008-F-1)
Submitted: September 15, 2011 Decided: September 30, 2011
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Reversed and remanded by unpublished per curiam opinion.
Samuel B. Winthrop, WINTHROP AND WINTHROP, Statesville, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cornell Breon Rilley Harper pled guilty to possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924 (2006). Harper moved to withdraw his guilty
plea in light of the Supreme Court’s decision in Carachuri-
Rosendo v. Holder, __ U.S. __, 130 S. Ct. 2577 (2010), but that
motion was denied. The district court sentenced Harper to 102
months’ imprisonment. Harper appealed, arguing that his prior
conviction was not punishable by imprisonment for a term
exceeding one year and, thus, could not serve as a predicate
conviction pursuant to 18 U.S.C. § 922(g)(1). Harper 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.
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. Harper’s prior
North Carolina state conviction was not 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
sentencing scheme). When Harper raised this argument in the
district court, it was foreclosed by our decision in United
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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 Harper’s conviction, deny as moot the 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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