UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5017
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CARLOS SCOTT ALBRIGHT,
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-00006-NCT-1)
Submitted: September 30, 2011 Decided: October 7, 2011
Before DUNCAN, AGEE, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Michael A. DeFranco, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Scott Albright pleaded guilty to possession of
a firearm after having previously been convicted of a crime
punishable by a term of imprisonment exceeding one year, in
violation of 18 U.S.C. § 922(g)(1) (2006). The district court
sentenced Albright to 116 months of imprisonment. Albright
timely appealed, and argues that one of his prior North Carolina
convictions did not qualify as a felony to increase the
applicable base offense level under the advisory Guidelines. *
The parties have also filed a joint motion to remand the appeal
to the district court for resentencing. For the reasons that
follow, we affirm Albright’s conviction, but grant the motion,
vacate the sentence, and remand for resentencing.
We review a sentence for reasonableness, applying an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007); see also United States v. Layton, 564 F.3d 330,
335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). In so
doing, we first examine the sentence for “significant procedural
error,” including “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
*
He does not challenge the other felony listed in the
indictment, a prior conviction for being a felon in possession
of a firearm. Thus, Simmons does not call into question the
validity of the present conviction.
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mandatory, failing to consider the [18 U.S.C.] § 3553(a)
[(2006)] factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.” Gall, 552 U.S. at 51.
Under the advisory Guidelines, the base offense level
applicable to the offense of conviction is twenty if the
defendant committed the offense after sustaining a felony
conviction for a crime of violence or a controlled substance
offense, and twenty-four if the defendant committed the offense
after sustaining two such convictions. See U.S. Sentencing
Guidelines Manual (“USSG”) § 2K2.1(a)(2), (4)(A) (2010).
Relevant to this appeal, USSG § 4B1.2(b) defines a controlled
substance offense as an offense punishable by a term of
imprisonment exceeding one year that prohibits the dispensing or
possession with intent to distribute a controlled substance.
Here, Albright had prior North Carolina convictions
for possession with intent to deliver marijuana and conspiracy
to commit robbery with a dangerous weapon. His conviction for
possession with intent to delivery marijuana is a Class H felony
under North Carolina law. Moreover, at the time of this
conviction, Albright’s prior record level was I, and the
sentencing court found that he should be sentenced within the
presumptive range of the applicable sentencing table under N.C.
Gen. Stat. § 15A-1340.17(c) (2007). Under North Carolina law,
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Albright faced a maximum term of imprisonment of eight months
for this offense, see N.C. Gen. Stat. § 15A-1340.17(d) (2007),
and could not therefore have received a term of imprisonment
exceeding twelve months for this prior conviction.
In United States v. Simmons, 649 F.3d 237 (4th Cir.
2011) (en banc), we determined that an offense is not punishable
by a term exceeding one year of imprisonment if the defendant
could not have actually received more than one year of
imprisonment for that offense, based on his prior criminal
history and other factors. As Albright could not have received
a term exceeding one year of imprisonment for the possession
with intent to deliver marijuana conviction, he had only one
prior conviction that qualified to enhance the applicable base
offense level under the Guidelines. See USSG § 2K2.1(a)(2),
(4)(A). As the advisory Guidelines range was determined based
on a base offense level of twenty-four rather than twenty,
Albright was sentenced based on an incorrect Guidelines
calculation. Therefore, the sentence is procedurally
unreasonable.
Accordingly, we affirm Albright’s conviction, but
grant the motion to remand, vacate the sentence, and remand for
resentencing. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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