UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4647
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RUSHAUN NECKO PARKER, a/k/a Duke, a/k/a Rushuan Nekoe
Parker, a/k/a Rushuan Nikoe Parker,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:10-cr-00011-H-1)
Submitted: January 27, 2012 Decided: February 14, 2012
Before WILKINSON, DIAZ, and FLOYD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Robert W. Waddell, THE WADDELL LAW FIRM PLLC, Greenville, 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Unpublished opinions are not binding precedent in this circuit.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:
Rushaun Necko Parker was convicted following a jury
trial of conspiracy to possess with intent to distribute fifty
grams or more of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2006); distribution of fifty grams or more of
cocaine base; distribution of more than five grams but less than
fifty grams of cocaine base; possession with intent to
distribute fifty grams or more of cocaine base; possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006); possession of a firearm in furtherance of a
drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)
(2006); and money laundering, in violation of 18 U.S.C.
§§ 1956(a)(1)(A)(i), (h) (2006). Based on findings that Parker
had been convicted of one felony drug offense and one violent
felony, the district court applied the enhanced punishments
under 21 U.S.C. § 841(b)(1)(A-C), determined that Parker was a
career offender under the U.S. Sentencing Guidelines Manual
§ 4B1.1 (“USSG”), and sentenced Parker to a total term of 420
months of imprisonment.
On appeal Parker argues that neither of the prior
North Carolina convictions are punishable by imprisonment for a
term exceeding one year, and therefore are not predicates for
the purposes of the § 922(g)(1) conviction, for the purposes of
the statutory sentencing enhancements, 21 U.S.C. §§ 802(44),
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841, or for the purposes of calculating his sentencing
guidelines. 1 USSG § 4B1.2(a). The United States has filed an
unopposed motion to remand, conceding that Parker’s conviction
for possessing a firearm after a felony conviction is no longer
sustainable, that the statutory penalty enhancements should not
apply, and that Parker is not a career offender. We reverse
Parker’s § 922(g)(1) conviction, affirm the remaining
convictions, vacate Parker’s sentence and remand.
Parker’s § 922(g)(1) conviction and his sentences were
based on two prior North Carolina convictions, one for
possession with intent to sell and deliver cocaine and one for
fleeing to elude arrest, with two aggravating factors (“the
North Carolina convictions”). Parker was charged, convicted,
and sentenced consistent with this court’s decision in United
States v. Harp, 406 F.3d 242, 246-47 (4th Cir. 2005), which
allowed courts to consider a hypothetical North Carolina
defendant with the worst possible criminal record in determining
whether the underlying crime was punishable by a term of
imprisonment greater than one year. Because a North Carolina
1
Parker’s conclusory assertion in a footnote of his brief
that the evidence was insufficient to sustain his § 924(c)
conviction does not comply with the rules governing briefing on
appeal. Fed. R. App. P. 28(a)(5), (a)(9)(a). This argument is
therefore not properly before the Court, and will not be
considered. Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6
(4th Cir. 1999).
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court faced with a defendant with the worst possible criminal
history could have imposed a sentence of greater than one year,
Parker’s prior convictions constituted felonies under the
reasoning in Harp.
This court recently overruled Harp. United States v.
Simmons, 649 F.3d 237, 241 (4th Cir. 2011) (en banc). We held
that, when deciding whether a North Carolina conviction is a
predicate offense for sentencing enhancement purposes, the
Controlled Substance Act’s inclusion of offenses “punishable by
imprisonment for more than one year” refers to the maximum
sentence that the defendant in question could have received, not
the sentence that could have been imposed on a defendant with a
more severe criminal history or subject to an aggravated
sentence. Id. at 243-45. The reasoning in Simmons applies with
equal force to predicate convictions used to establish mandatory
minimums at sentencing, advisory Guidelines ranges, and
§ 922(g)(1) offenses. The Government concedes, and the record
supports a conclusion that, under Simmons, Parker’s prior North
Carolina convictions were not punishable by more than one year
of imprisonment. Parker has no other prior convictions that
were punishable by more than one year of imprisonment. Thus,
his conviction as a felon in possession of a firearm is invalid,
as is his sentence as a career offender.
4
We therefore grant the Government’s motion, reverse
Parker’s § 922(g)(1) conviction, affirm his remaining
convictions, vacate his sentence, and remand this case 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
2
We of course fault neither the Government nor the district
court for relying on, and applying, unambiguous circuit
authority at the time of Parker’s prosecution and sentencing.
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