UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4171
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL CHARLES LEWIS,
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. (5:10-cr-00147-FL-1)
Submitted: October 27, 2011 Decided: November 15, 2011
Before WILKINSON, MOTZ, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:
Daniel Charles Lewis pleaded guilty to possession of a
firearm by a convicted felon in violation of 18 U.S.C.
§§ 922(g)(1), 924 (2006). The district court sentenced Lewis to
324 months’ imprisonment. Lewis appealed and filed an unopposed
motion to vacate his conviction in light of United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). We grant the
motion.
Under 18 U.S.C. § 922(g)(1), it is unlawful for any
person convicted of a crime punishable by imprisonment for a
term exceeding one year to possess a firearm. Under North
Carolina’s structured sentencing regime, Lewis could not have
received a custodial sentence of more than one year for his
previous convictions given his criminal history. See N.C. Gen.
Stat. § 15A-1340.17 (c)-(d) (2009). Therefore, Lewis lacks the
predicate conviction required to confer guilt under 18 U.S.C.
§ 922(g)(1). When the district court accepted Lewis’s plea,
this argument was foreclosed by our decision in United States v.
Harp, 406 F.3d 242 (4th Cir. 2005). Subsequently, however, we
overruled Harp with our en banc decision in Simmons. In view of
our holding in Simmons, we grant Lewis’s motion, vacate his
conviction, and remand to the district court for further
proceedings.
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We direct the clerk 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.
VACATED AND REMANDED
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