UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4413
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL CHRISTOPHER ISLEY,
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-00212-NCT-1)
Submitted: September 16, 2011 Decided: October 11, 2011
Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William C. Ingram,
Jr., First Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Lisa B. Boggs, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Christopher Isley appeals his conviction
following his conditional guilty plea to possession of a firearm
by a convicted felon, 1 in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) (2006). On appeal, Isley argues that the North
Carolina conviction forming the basis for his federal conviction
was not punishable by more than one year in prison, and
therefore that he is not a convicted felon. We agree.
Accordingly, we reverse Isley’s conviction and remand to the
district court for further proceedings.
We review de novo a district court’s denial of a
motion to dismiss the indictment where denial depends on a
question of law. United States v. Hatcher, 560 F.3d 222, 224
(4th Cir. 2009). Section 922(g)(1) prohibits the possession of
a firearm by any person “who has been convicted in any court of,
a crime punishable by imprisonment for a term exceeding one
year.” 18 U.S.C. § 922(g)(1).
Isley was charged and convicted consistent with our
decision in United States v. Harp, 406 F.3d 242, 246-47 (4th
Cir. 2005). We recently overruled Harp with our en banc
decision in United States v. Simmons, 649 F.3d 237, 2011 WL
1
By entering a conditional guilty plea, Isley preserved his
right to appeal the district court’s denial of his motion to
dismiss his indictment.
2
3607266, at *3 (4th Cir. Aug. 17, 2011), in which 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. Id. at *8. As established by his state
court judgment, Isley was not eligible for a sentence that
exceeded one year. Thus, under Simmons, Isley’s predicate North
Carolina conviction was not for a crime punishable by more than
one year of imprisonment and thus cannot support his federal
indictment. 2
Accordingly, we reverse Isley’s conviction and remand
for further proceedings. The Clerk is directed to issue the
mandate forthwith. 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
2
We of course do not fault the Government or the district
court for their reliance upon, and application of, unambiguous
circuit authority at the time of Isley’s indictment and
conviction.
3