UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4160
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVE GIBSON, JR., a/k/a Gib,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:10-cr-00596-TLW-1)
Submitted: September 22, 2011 Decided: September 30, 2011
Before MOTZ, SHEDD, and DAVIS, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Carrie Fisher Sherard,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Steve Gibson, Jr., pled
guilty to possession of a firearm and ammunition by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and
924(e) (2006). The parties stipulated in the plea agreement to
an advisory Sentencing Guidelines range of 188 to 235 months’
imprisonment if Gibson was designated an armed career criminal.
See Fed. R. Crim. P. 11(c)(1)(C). The district court sentenced
Gibson as an armed career criminal to 228 months’ imprisonment.
Gibson appealed.
Gibson’s counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), stating that, in his
view, there are no meritorious grounds for appeal but
questioning the validity of Gibson’s guilty plea and his armed
career criminal sentence. Gibson filed a pro se supplemental
brief asserting ineffective assistance of counsel at sentencing.
For the reasons that follow, we affirm in part, vacate in part,
and remand.
Turning first to the validity of Gibson’s guilty plea,
where, as here, the defendant did not move to withdraw his
guilty plea in the district court, we review the adequacy of the
plea for plain error. United States v. Martinez, 277 F.3d 517,
525 (4th Cir. 2002). Our review of the record on appeal leads
us to conclude that the district court substantially complied
2
with the mandates of Rule 11 in accepting Gibson’s plea.
Moreover, the district court ensured that Gibson’s guilty plea
was knowing and voluntary and was supported by a sufficient
factual basis. United States v. DeFusco, 949 F.2d 114, 116,
119-20 (4th Cir. 1991).
The district court designated Gibson an armed career
criminal based on two North Carolina state convictions involving
assault with a deadly weapon and a North Carolina state
conviction for breaking and/or entering. As he did in the
district court, defense counsel argues that Gibson’s
constitutional rights were violated because the predicate
offenses supporting his armed career criminal designation were
not charged in the indictment or found by a jury beyond a
reasonable doubt. Because prior convictions supporting a
defendant’s designation as an armed career criminal need not be
charged in the indictment or found by a jury beyond a reasonable
doubt, this argument is meritless. See United States v.
Thompson, 421 F.3d 278, 284 n.4 (4th Cir. 2005) (holding that an
indictment need not reference or list the prior convictions used
to enhance a sentence); United States v. Cheek, 415 F.3d 349,
352-54 (4th Cir. 2005) (holding that prior convictions used as
the basis for an armed career criminal sentence need not be
charged in the indictment or proven beyond a reasonable doubt).
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Although not raised by counsel and raised by Gibson
only in the context of an ineffective assistance of counsel
claim, 1 Gibson’s armed career criminal designation is in question
because his breaking and/or entering conviction may not qualify
as a predicate offense. Because this issue is considered for
the first time on appeal, we review it for plain error. United
States v. Hargrove, 625 F.3d 170, 184 (4th Cir. 2010), petition
for cert. filed (Mar. 8, 2011).
To qualify for the fifteen year mandatory minimum
punishment under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e), a felon in possession of a firearm or
ammunition must have three prior convictions for a violent
felony or serious drug offense or both, committed on occasions
different from one another. A qualifying offense must be
punishable by a term exceeding one year. 18 U.S.C.
§ 924(e)(2)(B). Under North Carolina’s structured sentencing
scheme, sentences are calculated based on an offender’s criminal
1
In his pro se supplemental brief, Gibson contends that
counsel was ineffective for failing to assert at sentencing that
his breaking and entering conviction did not qualify as an armed
career criminal predicate offense. Because the record does not
conclusively show that Gibson was denied effective assistance of
counsel, see United States v. McNamara, 74 F.3d 514, 516-17 (4th
Cir. 1996) (holding that counsel’s failure to anticipate change
in law does not amount to ineffective assistance), Gibson’s
claim is not cognizable on direct appeal. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999); United States v.
King, 119 F.3d 290, 295 (4th Cir. 1997).
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history and whether his offense falls within the mitigated,
presumptive, or aggravated range. N.C. Gen. Stat. § 15A-
1340.17(c)-(d) (Lexis Nexis 2009).
At the time of Gibson’s conviction and sentencing,
existing precedent established that a prior conviction for a
violent felony or serious drug offense was punishable by a
prison term exceeding one year if the maximum aggravated
sentence that would be imposed for that crime upon a defendant
with the worst possible criminal history was more than a year.
United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005).
Recently, however, we overruled Harp with our en banc decision
in United States v. Simmons, 649 F.3d 237, 2011 WL 3607266 (4th
Cir. Aug. 17, 2011) (No. 08-4475), where we held that a North
Carolina offense may not be classified as a felony based upon
the maximum aggravated sentence that could be imposed upon a
repeat offender if the individual defendant was not eligible for
such a sentence. Simmons, 2011 WL 3607266, at *3.
Gibson did not receive a sentence exceeding twelve
months on his breaking and/or entering conviction and it is
unclear from the record on appeal whether this conviction
exposed him to a sentence exceeding twelve months and therefore
was properly counted as the third predicate offense qualifying
him for armed career criminal designation. If not, the maximum
sentence Gibson faced was ten years’ imprisonment, 18 U.S.C.
5
§ 924(a)(2), a sentence well below the 228-month sentence he
received.
For these reasons, we affirm Gibson’s conviction, but
vacate his sentence and remand for the district court to
consider Gibson’s sentence in light of Simmons. 2 This court
requires that counsel inform his client, in writing, of the
right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. 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
2
In accordance with Anders, we have reviewed the entire
record and found no additional meritorious issues for appeal.
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