UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4119
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TAHJI ANTONIO ELEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:10-cr-00196-F-3)
Submitted: November 17, 2011 Decided: November 29, 2011
Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Bridgett Britt Aguirre, Fuquay-Varina, 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Unpublished opinions are not binding precedent in this circuit.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:
Tahji Antonio Eley pled guilty, pursuant to a plea
agreement, to conspiracy to commit robbery, in violation of 18
U.S.C. § 1951 (2006), using and carrying a firearm during a
crime of violence, in violation of 18 U.S.C. § 924(c) (2006),
and possession of a firearm by a convicted felon, in violation
of 18 U.S.C. § 922(g)(1) (2006). Eley was sentenced to a 244-
month term of imprisonment. Eley appealed. Following our
decision in United States v. Simmons, 649 F.3d 237
(4th Cir. 2011) (en banc), Eley asserted he was improperly
sentenced as a career offender, and he filed an unopposed motion
to remand the case for resentencing. We affirm in part, vacate
in part, and remand for further proceedings.
Based on his prior North Carolina convictions, the
district court sentenced Eley as a career offender. However, it
is now clear that one of his predicate convictions was not
punishable by imprisonment for a term exceeding one year. See
N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting minimum and
maximum sentences applicable under North Carolina’s structured
sentencing scheme). When Eley argued in the district court that
his convictions could not serve as predicate offenses for the
purposes of career offender status, the argument was foreclosed
by our decision in United States v. Harp, 406 F.3d 242
(4th Cir. 2005). Subsequently, however, we overruled Harp with
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our en banc decision in Simmons, in which we sustained a similar
argument in favor of the defendant.
In view of our holding in Simmons, we vacate Eley’s
sentence and remand for further proceedings. Because we cannot
determine from the record before us whether, in light of
Simmons, Eley’s § 922(g)(1) conviction is supported by a prior
felony conviction, we vacate Eley’s § 922(g)(1) conviction and
remand for the district to make that determination. The
district court shall reinstate the § 922(g) conviction in the
event it concludes Eley has a qualifying prior felony
conviction. We affirm Eley’s remaining convictions and deny the
motion to remand as moot. 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
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