US v. Jeffrey Lewi, No. 11-4375 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4375 UNITED STATES OF AMERICA, Plaintiff Appellee, v. JEFFREY WINSTON LEWIS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (7:09-cr-00088-BO-1) Submitted: November 30, 2011 Decided: December 15, 2011 Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges. Reversed and remanded by unpublished per curiam opinion. Stephen Clayton Gordon, 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 Unpublished opinions are not binding precedent in this circuit.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: Jeffrey Winston Lewis entered a conditional guilty plea to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (2006). Lewis reserved his right to appeal prior the possession issue of whether with intent to his state manufacture, convictions sell, and for deliver marijuana, in violation of N.C. Gen. Stat. § 90-95(a)(1) (2009), and maintaining a dwelling for the purposes of using controlled substances, in violation of N.C. Gen. Stat. § 90-108(a)(7) (2009), were punishable by more than one year of imprisonment and therefore constituted predicate felonies for the § 922(g) conviction. On consideration of Lewis s unopposed motion to vacate his federal conviction, we reverse. The judgments for the state court convictions, included in the record below in support of Lewis s motion to dismiss the indictment, reveal that Lewis faced a maximum possible sentence of ten months for each of his prior North Carolina convictions. At the time that the district court accepted Lewis s guilty plea, our decision in United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005), dictated that a court, when determining whether a prior conviction could be considered as a felony, should consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history. 2 Harp has since been overturned by our decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). Simmons holds that a North Carolina offense may not be classified as a felony based upon the maximum aggravated sentence that could be imposed upon a repeat offender if the defendant before actually eligible for such a sentence. the court was Id. at 241-46. not Because Lewis was not subject to a sentence exceeding one year for these predicate convictions, and therefore had no prior felony convictions, the conduct that formed the basis for his federal conviction, possessing a firearm, did not violate § 922(g)(1). Accordingly, we reverse Lewis s conviction and remand for further proceedings. * We deny Lewis s motion to vacate as moot. is directed to issue the mandate forthwith. oral argument adequately because presented in the the facts and materials The clerk We dispense with legal before contentions the court are and argument would not aid the decisional process. REVERSED AND REMANDED * We of course do not fault the Government or the district court for reliance on, and application of, unambiguous circuit authority at the time of Lewis s indictment and conviction. 3
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