UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4933
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL UYIOGHOSA OHANGBON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:09-cr-00346-TDS-1)
Submitted: March 30, 2012 Decided: April 17, 2012
Before WILKINSON, DAVIS, and WYNN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
David Bruce Freedman, CRUMPLER, FREEDMAN, PARKER & WITT,
Winston-Salem, North Carolina, for Appellant. Randall Stuart
Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Uyioghosa Ohangbon pleaded guilty, pursuant to
a plea agreement, to possession with intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a)(1) (2006), and
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2006). Following a successful appeal, in
which we affirmed the convictions but vacated the sentence,
Ohangbon was resentenced to concurrent thirty-month terms of
imprisonment. In this appeal, Ohangbon argues that his § 922(g)
conviction is no longer valid in light of our decision in United
States v. Simmons, 649 F.3d 237, 241 (4th Cir. 2011) (en banc).
In Simmons, we overruled United States v. Harp, 406
F.3d 242 (4th Cir. 2005), and held that a North Carolina state
conviction may not be classified as punishable by a term of
imprisonment exceeding one year based on the maximum aggravated
sentence that could be imposed on a repeat offender if the
individual defendant was not eligible for such a sentence.
Simmons, 649 F.3d at 241, 243-48.
Ohangbon’s § 922(g) conviction was supported by his
North Carolina conviction for possession with intent to
distribute marijuana, a class I felony. See N.C. Gen. Stat.
§§ 90-95(b)(2), 90-94(1) (2011). The record does not include
the state court judgment and it is not clear what Ohangbon’s
prior record level was at his state sentencing. However, the
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record does reflect that Ohangbon was ultimately sentenced to a
suspended sentence of six to eight months’ imprisonment.
Accordingly, it appears that he could not have been sentenced to
imprisonment for a term exceeding one year because even if he
faced a minimum sentence of eight months, Ohangbon was exposed
to a maximum term of imprisonment of no more than ten months.
N.C. Gen. Stat. § 15A-1340.17 (d) (2003). Applying Simmons, it
appears that Ohangbon did not have the requisite predicate
offense to be convicted of being a felon in possession of a
firearm. We remand to the district court for the appropriate
determination regarding this prior conviction.
Accordingly, we vacate Ohangbon’s § 922(g) conviction
and his sentence and remand for further proceedings. 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.
VACATED AND REMANDED
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