United States v. Kebrae Brown

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                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4267


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KEBRAE ODERO BROWN,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (2:10-cr-00019-D-1)


Submitted:   September 30, 2011           Decided:   October 21, 2011


Before DUNCAN, KEENAN, and DIAZ, Circuit Judges.


Reversed and remanded by unpublished per curiam opinion.


Stephen Clayton Gordon, Assistant Federal Public Defender,
Raleigh, 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Unpublished opinions are not binding precedent in this circuit.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:

              Kebrae Odero Brown pled guilty to possessing a firearm

after   having        been      convicted       of     a     crime     punishable     by

imprisonment for a term exceeding one year in violation of 18

U.S.C. § 922(g)(1) (2006), reserving his right to appeal the

issue of whether his prior state convictions were punishable by

more than one year of imprisonment.                     The offenses in question

were prior North Carolina convictions for possession of burglary

tools and attempted breaking and entering; for each of these

offenses Brown faced a maximum possible sentence of ten months

under North Carolina law.

              Brown    appealed,      arguing        that   neither     of    his   prior

convictions was “punishable by imprisonment for a term exceeding

one   year”    under     the    Supreme    Court’s         decision    in    Carrachuri-

Rosendo v. Holder, 130 S. Ct. 2577 (2010).                           We recently held

that, when deciding whether a North Carolina conviction is a

predicate      offense       for    sentencing        enhancement      purposes,     the

Controlled Substance Act’s inclusion of offenses “punishable by

imprisonment     for     more      than   one   year”       refers    to    the   maximum

sentence that the defendant in question could have received, not

the sentence that could have been imposed on a defendant with a

more severe criminal history or one subject to an aggravated

sentence.      United States v. Simmons, 649 F.3d 237, 241 (4th Cir.

2011) (en banc).          Thus, because neither of Brown’s underlying

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North Carolina convictions was punishable by a term exceeding

one year, Brown’s conduct that formed the basis for his federal

conviction — possessing a firearm — did not violate § 922(g).

                  Accordingly, we reverse Brown’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




        ∗
       This disposition conveys no                 criticism of either the
Government or the district court,                 both of which dutifully
applied circuit precedent at the time             of Brown’s prosecution and
sentencing that was later reversed                by Simmons.    See United
States v. Harp, 406 F.3d 242 (4th Cir.            2005).



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