UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4359
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTOINE WILSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:10-cr-00213-F-2)
Submitted: September 22, 2011 Decided: October 11, 2011
Before MOTZ, SHEDD, and KEENAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Lewis A. Thompson, III, BANZET, THOMPSON & STYERS, PLLC,
Warrenton, North Carolina, for Appellant. Jennifer P.
May-Parker, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antoine Wilson was charged with being in possession of
a firearm having been previously convicted of a crime punishable
by imprisonment for a term exceeding one year. Wilson filed a
motion to dismiss the charges against him in light of the
Supreme Court’s decision in Carachuri-Rosendo v. Holder, 130 S.
Ct. 2577 (2010) (“We hold that when a defendant has been
convicted of a simple possession offense that has not been
enhanced based on the fact of a prior felony conviction, he has
not been ‘convicted’” of the enhanced offense). Wilson argued
that he had no prior conviction punishable by a term of
imprisonment exceeding one year. The district court denied
Wilson’s motion but allowed him to enter a conditional guilty
plea preserving this issue for appeal. The court sentenced
Wilson to twenty-six months’ imprisonment, and Wilson timely
appealed.
Following the issuance of this court’s opinion in
United States v. Simmons, 649 F.3d 237, 2011 WL 3607266 (4th
Cir. 2011) (en banc), Wilson has filed in this court a motion to
vacate his conviction and remand for further proceedings. The
2
Government does not oppose the motion. 1 We grant Wilson’s
motion.
In reviewing the denial of a motion to dismiss the
indictment, we review the district court’s factual findings for
clear error and its legal conclusions de novo. United States v.
Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005).
Under 18 U.S.C. § 922(g), it is unlawful for one
previously convicted of a felony to possess “in or affecting
commerce[] any firearm or ammunition.” A felony is defined as a
conviction “in any court of [] a crime punishable by
imprisonment for a term exceeding one year.” 18 U.S.C.
§ 922(g)(1). At the time the district court denied Wilson’s
motion to dismiss, his argument that he had no prior felony
convictions in the district court was foreclosed by our decision
in United States v. Harp, 406 F.3d 242, 246-47 (4th Cir. 2005)
(holding that “to determine whether a conviction is for a crime
punishable by a prison term exceeding one year” the court should
consider “the maximum aggravated sentence that could be imposed
1
While the Government’s response first notes that Wilson
moved this court “to vacate [his] conviction and remand to the
trial court,” the response later states that the Government
requests that Wilson’s “sentence be vacated and the case
remanded to the district court for resentencing.” However, as
Wilson challenges only his conviction in this court, not his
sentence, we assume that the Government’s stated acquiescence in
resentencing reflects an inadvertent clerical error.
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for that crime upon a defendant with the worst possible criminal
history” and not the maximum sentence that could be imposed on
the actual defendant being sentenced). Subsequently, however,
this court overruled Harp with its en banc decision in Simmons,
(holding that consideration of hypothetical aggravating factors
and criminal history is inappropriate when determining whether a
prior offense constitutes a felony).
In view of our holding in Simmons, we grant Wilson’s
motion to vacate his conviction and remand the case to the
district court for proceedings consistent with this opinion.
Because we cannot determine from the current record whether, in
light of Simmons, Wilson’s prior conviction would qualify as a
felony under § 922(g)(1), we express no opinion on that issue
and leave that determination, as well as the companion question
whether the judgment should be reimposed or the indictment
dismissed, for the district court on remand. 2 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. The clerk is
directed to issue the mandate forthwith.
VACATED AND REMANDED
2
We of course do not fault the Government or the district
court for reliance on, and application of, unambiguous circuit
authority at the time of Wilson’s indictment and conviction.
4