UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4480
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRELL BARTEL ANTHONY MILLER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00272-NCT-2)
Submitted: September 30, 2011 Decided: October 3, 2011
Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Steven Kiersh, Washington, DC, for Appellant. John W. Stone,
Jr., Acting United States Attorney, Randall S. Galyon, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terrell Bartel Anthony Miller appeals his conviction
for possession of a firearm by a convicted felon, in violation
of 18 U.S.C. § 922(g)(1) (2006). He asserts that his prior
North Carolina conviction for possession with intent to sell and
deliver marijuana was not a felony and therefore could not
support his federal indictment. We conclude that our recent
decision in United States v. Simmons, 649 F.3d 237 (4th Cir.
2011) (en banc), calls into question whether Miller’s predicate
conviction was “a crime punishable by imprisonment for a term
exceeding one year.” 18 U.S.C. § 922(g).
Because we cannot determine on the record before us
whether, in light of Simmons, Miller’s North Carolina conviction
is a felony or a misdemeanor, we vacate the judgment and remand
this case to the district court for the court to make such
determination in the first instance. Should the district court
determine that the prior conviction is a felony, it may reimpose
the judgment. Should the district court conclude, however, that
Miller’s predicate North Carolina conviction is a misdemeanor,
we are confident that the court will ensure that appropriate
remedial action follows.
The clerk is directed to issue the mandate forthwith.
We dispense with oral argument because the facts and legal
2
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
VACATED AND REMANDED
3