UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4355
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TYRELL BELLAMY, a/k/a Clifton Tyrell Evans, a/k/a Psycho,
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. (7:08-cr-00042-FL-1)
Argued: October 28, 2010 Decided: November 22, 2011
Before MOTZ, AGEE, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
ARGUED: Josiah John Corrigan, James Stockton Perry, PERRY, PERRY
& PERRY, Kinston, North Carolina, for Appellant. Kristine L.
Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: George E. B. Holding, United
States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tyrell Bellamy appeals his 235-month sentence
following his guilty plea to one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2006). On appeal, Bellamy argues that
the district court erred in sentencing him as an armed career
criminal because his prior North Carolina state conviction for
eluding arrest with a motor vehicle, in violation of N.C. Gen.
Stat. § 20-141.5 (2009), was not a violent felony. We conclude
that resentencing is warranted in light of our recent decision
in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011)
(en banc). Accordingly, we affirm Bellamy’s conviction, vacate
his sentence, and remand for resentencing.
The Armed Career Criminal Act’s (“ACCA”) provision for
an enhanced sentence — a statutory range of fifteen years to
life in prison — is applicable to a defendant who violates 18
U.S.C. § 922(g) and has “three previous convictions . . . for a
violent felony or a serious drug offense.” 18 U.S.C.
§ 924(e)(1). A “violent felony” is an offense punishable by
imprisonment for a term exceeding one year that “has as an
element the use, attempted use, or threatened use of physical
force against the person of another,” or “is burglary, arson, or
extortion, involves use of explosives, or otherwise involves
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conduct that presents a serious potential risk of physical
injury to another.” 18 U.S.C. § 924(e)(2)(B)(i)-(ii).
Bellamy argues that his prior state conviction was not
punishable by imprisonment for a term exceeding one year.
See N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting forth
minimum and maximum sentences applicable under the North
Carolina Structured Sentencing Act). Bellamy, however, did not
raise this argument in the district court. Accordingly, our
review is for plain error. United States v. Hargrove, 625 F.3d
170, 184 (4th Cir. 2010), cert. denied, ___ S. Ct. ___, 2011 WL
4536007 (Oct. 3, 2011). To establish plain error, Bellamy must
demonstrate that (1) there was error; (2) the error was plain;
and (3) the error affected his substantial rights. United
States v. Olano, 507 U.S. 725, 732 (1993). Even if Bellamy
makes this showing, however, we exercise our discretion to
correct plain error only if it “seriously affects the fairness,
integrity or public reputation of judicial proceedings.” United
States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010) (internal
quotation marks omitted). We conclude after review of the
record that Bellamy has met his burden to establish plain error.
Bellamy’s prior state conviction is a Class H felony
under North Carolina law. Although the record does not contain
a copy of Bellamy’s state judgment, it appears after review of
the presentence report that the district court adopted that
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Bellamy’s prior state record level was Level III. N.C. Gen.
Stat. §§ 14-87, 15A-1340.14(a), (b)(2), (c)(3), (d) (2009).
Under the North Carolina Structured Sentencing Act, with a prior
record in Level III, Bellamy could only have been imprisoned for
a term exceeding one year for his conviction for eluding arrest
with a motor vehicle if he received a sentence in the aggravated
range. N.C. Gen. Stat. § 15A-1340.17(c)-(d). The present
record does not include a copy of the state court judgment for
this conviction, and does not otherwise indicate that Bellamy
received an aggravated sentence. Therefore, because it appears
that the conviction was not a proper predicate conviction for
purposes of the ACCA, the district court erred by sentencing
Bellamy as an armed career criminal. 1
We also hold that the district court’s error was
“plain.” For purposes of plain error review, “‘[p]lain’ is
synonymous with ‘clear’ or, equivalently, ‘obvious.’” Olano,
507 U.S. at 734. “An error is plain where the law at the time
of trial was settled and clearly contrary to the law at the time
of appeal.” United States v. Hughes, 401 F.3d 540, 547
(4th Cir. 2005) (internal quotation marks omitted). When
Bellamy objected to his classification as an armed career
1
This determination, of course, implies no criticism of the
experienced district judge, who dutifully applied
then-authoritative Circuit precedent at Bellamy’s sentencing.
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criminal in the district court, any objection based on his
sentence exposure for his prior state offense was foreclosed by
this court’s decision in United States v. Harp, 406 F.3d 242,
246 (4th Cir. 2005). Because Simmons has now overruled Harp,
however, we find that the district court’s error was plain.
Simmons, 649 F.3d at 241 (“[W]e now conclude that Harp no longer
remains good law.”).
The error also affected Bellamy’s substantial rights.
Had Bellamy not been classified as an armed career criminal, the
statutory maximum for his § 922(g) conviction would have been
ten years, slightly more than half the length of the 235-month
sentence actually imposed.
Because Bellamy received a longer sentence than he
could have received were it not for his classification as an
armed career criminal, we find it appropriate to notice the
district court’s sentencing error. Accordingly, we vacate
Bellamy’s sentence and remand for resentencing under Simmons. 2
2
In light of our disposition, we need not address Bellamy’s
arguments that his prior state conviction does not “otherwise
involve[] conduct that presents a serious potential risk of
physical injury to another.”
5
Bellamy does not challenge his conviction on appeal, and we
therefore affirm it.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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