UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5139
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYRAN MATRICE BRACE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:09-cr-00136-MR-1)
Submitted: September 22, 2011 Decided: September 30, 2011
Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Reversed and remanded by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, Angela G.
Parrott, Assistant Federal Defenders, Erin K. Taylor, Research
and Writing Attorney, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tyran Matrice Brace pled guilty to possessing a
firearm after having been convicted of a crime punishable by
imprisonment for a term exceeding one year in violation of 18
U.S.C. § 922(g)(1) (2006), reserving his right to appeal the
issue of whether his prior conviction was punishable by more
than one year of imprisonment. The offense in question was a
prior conviction for conspiracy to commit breaking and entering,
pursuant to which a defendant with a criminal record similar to
Brace’s faced a maximum possible sentence of ten months under
North Carolina law.
Brace appealed, arguing that his prior conviction was
not “punishable by imprisonment for a term exceeding one year”
under the Supreme Court’s decision in Carrachuri-Rosendo v.
Holder, 130 S. Ct. 2577 (2010). We recently held that, when
deciding whether a North Carolina conviction is a predicate
offense for sentencing enhancement purposes, the Controlled
Substance Act’s inclusion of offenses “punishable by
imprisonment for more than one year” refers to the maximum
sentence that the defendant in question could have received, not
the sentence that could have been imposed on a defendant with a
more severe criminal history or one subject to an aggravated
sentence. United States v. Simmons, No. 08-4475, ___ F.3d ___,
2011 WL 3607266, at *3 (4th Cir. Aug. 17, 2011) (en banc). The
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reasoning in Simmons applies with equal force to predicate
convictions as defined in 18 U.S.C. § 922(g)(1). See Carachuri-
Rosendo, 130 S. Ct. at 2586-87 (distinguishing between “conduct
punishable as a felony” and conviction of a felony offense);
Simmons, 2011 WL 3607266, at *8 (concluding that the North
Carolina Structured Sentencing Act “creates separate offenses
that in turn yield separate maximum punishments”). Thus,
because Brace’s underlying conviction was not punishable by a
term exceeding one year, Brace’s conduct — possessing a firearm
— did not violate § 922(g).
Accordingly, we reverse Brace’s conviction and
sentence and remand for further proceedings. * 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
*
This disposition conveys no criticism of either the
Government or the district court, both of which dutifully
applied circuit precedent at the time of Brace’s prosecution and
sentencing that was then authoritative but that was later
reversed by Simmons. See United States v. Harp, 406 F.3d 242
(4th Cir. 2005).
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