UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4916
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT A. GARMON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00164-RJC-1)
Submitted: September 19, 2011 Decided: October 12, 2011
Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Emily Marroquin, Ross H.
Richardson, Assistant Federal Defenders, Charlotte, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert A. Garmon pled guilty to being in possession of
a firearm after “having been previously convicted of, [sic] one
or more crimes punishable by imprisonment for a term exceeding
one year,” in violation of 18 U.S.C. § 922(g)(1) (2006). Garmon
pled guilty without the benefit of a plea agreement. However,
prior to the district court’s acceptance of his guilty plea,
Garmon filed what the district court construed as a motion to
dismiss the indictment. Garmon argued that, under Carachuri v.
Rosendo v. Holder, 130 S. Ct. 2577 (2010), none of his prior
convictions were “punishable” by a term of imprisonment
exceeding one year based on his prior record level. It is
undisputed that all of Garmon’s prior offenses were North
Carolina convictions and were class H felonies. For the first
two offenses, conspiracy to commit breaking and entering and
larceny and possession of a stolen automobile, his prior record
level was I. For his third offense, attempted larceny, his
prior record level was II. Garmon was not sentenced in the
aggravated range. Therefore, Garmon faced a maximum sentence of
six months for the first two offenses and eight months for the
third offense. N.C. Gen. Stat. § 15A-1340.17(c), (d) (2009).
The district court denied Garmon’s motion to dismiss,
but agreed to the parties’ stipulation that Garmon’s guilty plea
was subject to the condition that he could appeal any decision
2
made regarding his predicate offenses. The district court then
accepted Garmon’s conditional guilty plea, and sentenced him to
twenty-one months in prison. Garmon appealed. We reverse his
conviction and remand for further proceedings.
On appeal, Garmon argues that although he has three
prior North Carolina convictions, for none of them could he have
received a sentence exceeding one year of imprisonment.
Therefore, he contends, the district court erred in denying his
motion to dismiss the indictment. In reviewing the denial of a
motion to dismiss an 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.” The provision defines a
felony as a conviction “in any court of, [sic] a crime
punishable by imprisonment for a term exceeding one year.” 18
U.S.C. § 922(g). At the time the district court denied Garmon'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).
Subsequently, however, this court has overruled Harp in our en
3
banc decision in United States v. Simmons, 649 F.3d 237 (4th Cir.
2011).
In view of our holding in Simmons, we agree with
Garmon that his three prior state convictions, for which he
faced a maximum of either six months (first two convictions) or
eight months (third conviction), are not felonies as defined in
§ 922(g). Accordingly, we reverse the district court’s judgment
and remand the case to the district court for proceedings
consistent with this opinion.* In light of our disposition, we
deny Garmon’s motion to vacate and remand as moot. 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. The clerk is
directed to issue the mandate forthwith.
REVERSED AND REMANDED
*
We of course do not fault the Government or the district
court for relying upon unambiguous circuit authority at the time
of Garmon's conviction.
4