UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4065
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRANCE ANTWAN WILLIAMS,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 09-9351)
Submitted: September 30, 2011 Decided: October 6, 2011
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed in part, reversed in part, vacated in part, and
remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terrance Antwan Williams pled guilty, without a plea
agreement, to possession with intent to distribute more than
fifty grams of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A) (2006), possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c) (2006), and possession of a firearm after having
been convicted of a crime punishable by more than one year of
imprisonment, in violation of 18 U.S.C. § 922(g) (2006). On
appeal, he argues that he was legally innocent of being a felon
in possession of a firearm because his two North Carolina
convictions for possession with intent to sell and deliver
marijuana were not punishable by a term of imprisonment greater
than one year. For the same reason, he argues that he should
not have been sentenced under the career offender provision of
the United States Sentencing Guidelines.
We recently held that, when deciding whether a North
Carolina conviction is a predicate offense for sentencing
enhancements purposes, the federal Controlled Substance Act’s
inclusion of offenses “punishable by imprisonment for more than
one year” refers to the maximum sentence that the actual
defendant could have received, not one with a more severe
criminal history or one subject to an aggravated sentence.
United States v. Simmons, No. 08-4475, 649 F.3d 237, 2011 WL
2
3607266, at *3 (4th Cir. Aug. 17, 2011) (en banc). Thus,
because Williams’s underlying North Carolina convictions were
not punishable by a term exceeding one year, Williams’s conduct
— possessing a firearm — did not violate § 922(g), and he was
not properly sentenced as a career offender under the
Guidelines. 1
Accordingly, although we affirm Williams’s § 841 and
§ 924 convictions, we reverse his conviction for possession of a
firearm after having been convicted of a crime punishable by
more than one year of imprisonment. We vacate his sentence and
remand for resentencing in accordance with Simmons. 2 We dispense
with oral argument because the facts and legal contentions are
1
The district court did not, of course, have the benefit of
Simmons at the time of Williams’s guilty plea and sentencing
proceedings. We do not fault the district court or the
Government for applying established circuit precedent in the
earlier proceedings.
2
In light of our decision to vacate the sentence and remand
for resentencing, we decline to address Williams’s claim that
the district court failed to address his arguments against the
crack/powder sentencing disparity. At resentencing, the current
version of the Guidelines will apply. We express no opinion,
however, on the sentence to be imposed on remand.
3
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED IN PART,
REVERSED IN PART,
VACATED IN PART,
AND REMANDED
4