US v. Tadarian Neal, No. 09-5043 (4th Cir. 2011)

Annotate this Case

Download PDF

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5043 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TADARIAN RESHAWN NEAL, Defendant - Appellant. No. 09-5044 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TADARIAN RESHAWN NEAL, Defendant - Appellant. Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:09-cr-00017-FDW-DCK-1; 3:04-cr-00073-FDW-1) Submitted: December 13, 2011 Decided: December 16, 2011 Before WILKINSON, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Andrew B. Banzhoff, DEVEREUX & BANZHOFF, PLLC, Asheville, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Richard Lee Edwards, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: In appeals these both consolidated cases, 168-month sentence the Tadarian Reshawn Neal after his imposed convictions on all counts of a four-count indictment, as well as the twenty-four-month violation of the consecutive conditions of sentence supervised imposed release for that imposed on his 2005 federal felon-in-possession conviction. his were We affirm. Neal first claims that his conviction under 18 U.S.C. § 922(g)(1) (2006) for possessing a firearm as a convicted felon is invalid because it is based on a 2005 felon-in-possession conviction which jurisprudence. is itself infirm Our review is de novo. under our recent See Suter v. United States, 441 F.3d 306, 310 (4th Cir. 2006). Pertinent to this appeal, § 922(g)(1) prohibits the possession of a firearm by any person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year. 18 U.S.C. § 922(g)(1). At the time of Neal s conviction and sentence, we determined whether a prior conviction was punishable by more than a year s imprisonment by considering the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history. (4th Cir. 2005). United States v. Harp, 406 F.3d 242, 246 After Neal was sentenced, however, Harp was 3 overruled by the en banc decision in Simmons. See United States v. Simmons, 649 F.3d 237, 241 (4th Cir. 2011) (en banc). Simmons held that a prior North Carolina offense was punishable for a term exceeding one year only if the particular defendant before the court had been eligible for such a sentence under the applicable statutory scheme, taking into account his criminal history and the nature of his offense. Id. at 247; see also N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting forth North Carolina s structured sentencing scheme). Neal now argues that both of the North Carolina convictions that served as the predicates for his 2005 felon-inpossession conviction announced in Simmons. are not felonies (J.A. 878-79). under the As a result, claims Neal, his 2005 felon-in-possession conviction is invalid. to Neal, predicated because on the his current now infirm rationale § 922(g)(1) 2005 According conviction is felon-in-possession conviction, his present § 922(g)(1) conviction cannot stand. Neal is mistaken. This court squarely rejected this line of argument in United States v. Kahoe, 134 F.3d 1230 (4th Cir. 1998), holding that any subsequently-realized invalidity of a predicate felony conviction is immaterial to a § 922(g)(1) prosecution, as long as the prior conviction was in effect on the date that the defendant possessed the firearm. Id. at 1235. In this case, there is no dispute that Neal s 2005 felon-in4 possession conviction was both punishable by more than a year and was in effect on August 18, 2008, when he possessed the sawed-off shotgun that is the subject of his current § 922(g)(1) conviction. As a result, his current § 922(g)(1) conviction is proper, notwithstanding the possible effects of Simmons on his previous conviction. Neal next asserts that, because Simmons suggests that his 2005 district felon-in-possession court erred in conviction imposing a was prison in error, sentence for the his violation of the conditions of supervised release attendant to that offense. But, even assuming that Neal has not waived this strand of argument, it amounts to an attempt to collaterally attack his 2005 felon-in-possession conviction. validity of an collaterally proceeding underlying attacked and may in be conviction a F.3d 76, 78 challenged (2d sentence supervised only through a habeas corpus proceeding. 335 or Cir. Of course, the release on direct may not be revocation appeal or United States v. Warren, 2003) (collecting cases). Consequently, we can only conclude that Neal s present claims, which seek to elude the sentence imposed upon his violation of the conditions of supervised release by vacating the underlying 2005 felon-in-possession conviction, this court. 5 are not properly before Third, Neal attacks his convictions for obstruction of justice, in witness violation tampering, of in 18 U.S.C. violation of § 1503 18 (2006), U.S.C. § and for 1512(b)(1) (2006), on the ground that the indictment failed to set forth sufficient factual allegations regarding the nature of the offenses. We agree with the Government that Neal waived these challenges to the indictment by failing to raise them in the district court prior to trial. See Fed. R. Crim. P. 12(e); United States v. Robinson, 627 F.3d 941, 957 (4th Cir. 2010). Finally, Neal argues that his punishments for both obstruction of justice and witness tampering violate principles of double jeopardy, given that they are predicated on the same underlying conduct. We review questions of double jeopardy de novo. See United States v. Brown, 202 F.3d 691, 703 (4th Cir. 2000). Where the issue is solely that of multiple punishment, as opposed to multiple prosecutions, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended. United States v. Studifin, 240 F.3d 415, 418 (4th Cir. 2001) (internal quotation marks omitted). The same conduct can support convictions and sentencing under two different federal statutes as long as each statute requires proof of an element that the other does not. (4th Cir. 2000). United States v. Johnson, 219 F.3d 349, 358 Moreover, [i]f 6 the elements of the two statutes do not necessarily overlap, then multiple punishments are presumed to be authorized absent a clear showing of contrary Congressional intent. Id. at 359 (internal quotation marks omitted). In proof of an this case, element each that offense of other does the conviction not. See States v. LeMoure, 474 F.3d 37, 44 (1st Cir. 2007). made no multiple showing defeating punishments for the presumptive these separate requires United Neal has availability offenses. of His punishment under both § 1503 and § 1512 for the same underlying course of conduct therefore poses no double jeopardy concerns. Accordingly, we affirm the judgments of the district court. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented will not in aid the the material decisional process. AFFIRMED 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.