ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5062
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARTA ERWIN PERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:09-cr-00106-FL-1)
Submitted: September 30, 2011 Decided: October 19, 2011
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Reversed and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
William M. Gilmore, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marta Erwin Perry 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), conditioned on his
right to appeal the district court’s denial of his motion to
dismiss the indictment. The district court sentenced Perry to
eighty-four months of imprisonment. This court affirmed his
conviction on appeal in reliance upon our decision in United
States v. Harp, 406 F.3d 242 (4th Cir. 2005). See United
States v. Perry, 384 F. App’x 249 (2010) (unpublished). We
subsequently granted Perry’s petition for rehearing, based upon
the Supreme Court’s decision in Carachuri-Rosendo v. Holder, 130
S. Ct. 2577 (2010). Perry has now filed a motion to vacate his
conviction based on this court’s recent decision in United
States v. Simmons, 2011 WL 3607266 (Aug. 17, 2011) (en banc).
For the reasons that follow, we reverse Perry’s conviction.
Perry’s prior convictions consisted of Class I and
Class H felonies under North Carolina law. Moreover, at the
time of his convictions, Perry’s prior record level was never
above a level II. Under North Carolina law, the maximum term of
imprisonment for a Class H felony with a record level of II is
twelve months, and the maximum term for a Class I felony is ten
months. See N.C. Gen. Stat. § 15A-1340.17(d) (2007).
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Therefore, Perry could not have received a term of imprisonment
exceeding twelve months for his prior convictions.
In Simmons, 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 Perry could not have received a
term exceeding one year of imprisonment for his prior offenses,
he did not have a qualifying predicate offense for a conviction
under § 922(g)(1). Therefore, Perry is innocent of the offense
of conviction.
Accordingly, we reverse the judgment, deny Perry’s
motion to vacate as moot, 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
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