United States v. Cornell Harper

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5070

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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Reversed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

2
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