United States v. Daniel Lewis

                            UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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