United States v. Terrell Jones

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4813

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

TERRELL LEE JONES,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:10-cr-00284-BR-1)

Submitted: December 20, 2011 Decided: December 22,2011

Before MOTZ, DUNCAN, and DIAZ, Circuit Judges.

Reversed and remanded by unpublished per curiam opinion.

G. Alan DuBois, 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Unpublished opinions are not binding precedent in this circuit.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:

Terrell Lee Jones was convicted following his

conditional guilty plea to possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006).

The district court sentenced Jones to forty-six months’

imprisonment. Jones reserved the right to appeal the district

court’s determination that his prior North Carolina conviction

for attempted larceny from the person qualified as a felony for

the purpose of adjudging him guilty under § 922(g)(1). Jones

timely appealed. Prior to submitting an opening brief, Jones

moved to vacate his conviction and to remand the case to the

district court, arguing that his North Carolina conviction was

not punishable by imprisonment for a term exceeding one year

and, thus, that the conviction could not serve as the necessary

predicate for the § 922(g)(1) charge. The Government does not

oppose Jones’ motion. In light of our decision in United States

v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), we reverse

and remand.

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. Jones’ prior

North Carolina conviction was not punishable by imprisonment for

a term exceeding one year. See N.C. Gen. Stat. § 15A-

1340.17(c)-(d) (2009) (setting out minimum and maximum sentences

2
applicable under North Carolina’s structured sentencing scheme).

When Jones raised this argument in the district court, it was

foreclosed by our decision in United States v. Harp, 406 F.3d

242, 246 (4th Cir. 2005). Subsequently, however, we overruled

Harp with 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 reverse Jones’ conviction, deny as moot

his motion to vacate, and remand the case to the district court

for further proceedings. * The Clerk is directed 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.

REVERSED AND REMANDED

*
We of course do not fault the Government or the district
court for their reliance upon, and application of, unambiguous
circuit authority at the time of Jones’ indictment and
conviction.