UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4755
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
EDWARD JORGE GARDNER,
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. (1:08-cr-00177-NCT-1)
Submitted: September 29, 2011 Decided: October 12, 2011
Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.
Affirmed in part, vacated in part and remanded by unpublished
per curiam opinion.
George E. Crump, III, Rockingham, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Robert A. J. Lang,
Assistant United States Attorney, Winston-Salem, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward Jorge Gardner pled guilty pursuant to a written
plea agreement to possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1) (2006), and was sentenced
to 360 months’ imprisonment. At sentencing, Gardner’s counsel
objected to Gardner’s designation as an armed career criminal
under 18 U.S.C. § 924(e) (2006). Counsel asserted that some of
Gardner’s prior convictions could not count as predicate
felonies because, under the North Carolina structured sentencing
scheme, Gardner could not have received a sentence in excess of
one year based on his prior record level. Gardner conceded
below that this argument was foreclosed by this court’s
then-authoritative decision in United States v. Harp, 406 F.3d
242 (4th Cir. 2005), but he argued that Harp should be
overruled.
On appeal, Gardner again challenges the district
court’s conclusion that he had four previous violent felonies.
Section 924(e) subjects a violator of section 922(g) to enhanced
penalties if he has “three previous convictions by any court
. . . for a violent felony or a serious drug offense, or both.”
18 U.S.C. § 924(e)(1). One of the statutory requirements for a
“violent felony” is that it be “punishable by imprisonment for a
term exceeding one year.” 18 U.S.C. § 924(e)(2)(B). When
Gardner raised this argument in the district court, it was
2
foreclosed by Harp. 406 F.3d at 246 (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 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, we overruled Harp with
our en banc decision in United States v. Simmons, 649 F.3d 237
(4th Cir. 2011) (en banc) (holding that consideration of
hypothetical aggravating factors and criminal history is
inappropriate when determining whether a prior offense
constitutes a felony). Our Simmons decision requires
reconsideration of Gardner’s sentence.
We affirm Gardner’s conviction, which he does not
challenge on appeal, but we vacate his sentence and remand for
resentencing in light of Simmons.1 Because we cannot determine
from the current record whether, in light of Simmons, some or
all of Gardner’s prior convictions would constitute violent
felonies under § 924(e), we express no opinion on that issue and
1
We of course do not fault the Government or the district
court for application of unambiguous circuit authority at the
time of Gardner’s initial sentencing.
3
leave that determination for the district court on remand.2 We
decline to address Gardner’s remaining claims on appeal, as
their resolution may be rendered unnecessary by Gardner’s
resentencing. 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 in the decisional
process.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED
2
On resentencing, the district court should also consider
whether Gardner has the requisite predicate felony convictions
needed to calculate his base offense level under U.S. Sentencing
Guidelines Manual § 2K2.1(a)(2).
4