UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4983
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KEVIN DEVON MCCORMICK,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00263-WO-1)
Submitted: October 27, 2011 Decided: November 17, 2011
Before KING, AGEE, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
David Bruce Freedman, CRUMPLER, FREEDMAN, PARKER & WITT,
Winston-Salem, North Carolina, for Appellant. Ripley Rand,
United States Attorney, Anand P. Ramaswamy, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Devon McCormick pled guilty pursuant to a
written plea agreement to one count of distribution of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006).
Following the entry of his guilty plea, McCormick moved to
withdraw it. The district court denied that motion after a
hearing.
The district court sentenced McCormick as a career
offender, pursuant to U.S. Sentencing Guidelines Manual (“USSG”)
§ 4B1.1 (2009). At sentencing, McCormick lodged an objection to
his designation as a career offender, arguing that he could not
have received a sentence in excess of one year for certain
predicate offenses because of the class of the state offenses
and his prior record level. However, McCormick noted that his
argument failed under United States v. Harp, 406 F.3d 242 (4th
Cir. 2005). The district court denied McCormick’s objection and
sentenced him to 270 months’ imprisonment.
McCormick timely appealed the district court’s
conviction and sentence. Following the issuance of this court’s
decision in United States v. Simmons, 649 F.3d 237 (4th Cir.
2011) (en banc), McCormick filed an unopposed motion to vacate
his sentence and remand to the district court for resentencing.
This course of action was recommended as well by the Government
in its brief. We affirm McCormick’s conviction, grant his
2
motion to vacate his sentence, and remand to the district court
for resentencing in light of Simmons.
McCormick’s sole challenge to his conviction is that
the district court erred in denying his motion to withdraw his
guilty plea. This court reviews for abuse of discretion a
district court’s denial of a motion to withdraw a guilty plea.
United States v. Dyess, 478 F.3d 224, 237 (4th Cir. 2007). A
defendant seeking to withdraw his guilty plea bears the burden
of demonstrating that withdrawal should be granted. Id. In
deciding whether to permit withdrawal, a district court should
consider: (1) whether defendant offers credible evidence that
his plea was involuntary; (2) whether the defendant credibly
asserts his legal innocence; (3) the extent of a delay between
entry of the plea and filing of the motion; (4) “whether the
defendant has had close assistance of counsel;” (5) whether
withdrawal of the plea will prejudice the government or
(6) waste judicial resources. United States v. Ubakanma, 215
F.3d 421, 424 (4th Cir. 2000). Our thorough review of the
record leads us to conclude that the district court fully
assessed these factors and did not abuse its discretion in
denying McCormick’s motion to withdraw his guilty plea.
McCormick next challenges his sentence. He claims
that the predicate offenses used to designate him as a career
offender, pursuant to USSG § 4B1.1, were not punishable by a
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term exceeding one year. A defendant is a career offender under
the Guidelines if he was at least eighteen when he committed the
instant offense, that offense is a felony crime of violence or
controlled substance offense, and “the defendant has at least
two prior felony convictions of either a crime of violence or a
controlled substance offense.” USSG § 4B1.1(a). A “prior
felony conviction” must, among other requirements, be punishable
for a term exceeding one year. USSG § 4B1.2 cmt. n.1.
McCormick contends that his career offender
designation was improperly predicated upon multiple prior North
Carolina convictions that were not punishable by more than one
year of imprisonment. When McCormick raised this argument in
the district court, it was foreclosed by our decision in Harp,
406 F.3d at 246-47 (holding that “to determine whether a
conviction is for a crime punishable by a prison term exceeding
one year,” the court should consider “the maximum aggravated
sentence that could be imposed for that crime upon a defendant
with the worst possible criminal history” and not the maximum
sentence that could be imposed on the actual defendant being
sentenced (emphasis omitted)). Recently, however, this court
overruled Harp with our en banc decision in Simmons, 649 F.3d at
249-50 (holding that consideration of hypothetical aggravating
factors and criminal history is inappropriate when determining
whether a prior offense constitutes a felony).
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In light of Simmons, McCormick’s challenge to his
enhanced sentencing as a career offender warrants further
consideration. We cannot determine from the current record
whether the underlying North Carolina convictions supporting
McCormick’s designation as a career offender constitute prior
felony convictions. That determination should be made by the
district court after supplementing the record as needed.
Accordingly, we grant McCormick’s motion to vacate his sentence
and remand to the district court for resentencing consistent
with Simmons. 1
Based on the foregoing, we affirm McCormick’s
conviction, vacate his sentence, and remand to the district
court for further proceedings. 2 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.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
1
We of course do not fault the Government or the district
court for relying upon unambiguous circuit authority at the time
of McCormick’s conviction.
2
In view of this disposition, we find it unnecessary to
consider McCormick’s Fair Sentencing Act claim.
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