United States v. Michael White , 458 F. App'x 281 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4257
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL LEWIS WHITE,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 09-10491)
Submitted: September 15, 2011 Decided: October 20, 2011
Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Reversed and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Lewis White pleaded guilty to possession of a
firearm after having previously been convicted of a crime
punishable by a term of imprisonment exceeding one year, in
violation of 18 U.S.C. § 922(g)(1) (2006). White then moved to
withdraw his guilty plea, arguing that he did not have any prior
convictions that were punishable by a term of imprisonment
exceeding one year. The district court denied his motion and
sentenced White to 120 months of imprisonment. This court
affirmed his conviction on appeal in reliance upon our decision
in United States v. Harp, 406 F.3d 242 (4th Cir. 2005). See
United States v. White, 362 F. App’x 348 (2010) (unpublished).
The Supreme Court granted White’s petition for certiorari,
vacated the judgment, and remanded the appeal to this court for
reconsideration in light of Carachuri-Rosendo v. Holder, 130 S.
Ct. 2577 (2010). See White v. United States, 131 S. Ct. 84(2010). For the reasons that follow, we reverse White’s
conviction.
This court reviews a district court’s denial of a
motion to withdraw a guilty plea for abuse of discretion.
United States v. Dyess, 478 F.3d 224, 237 (4th Cir. 2007)
(citation omitted). A defendant seeking to withdraw his guilty
plea bears the burden of demonstrating that withdrawal should be
granted. Id. (citation omitted). In deciding whether to permit
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a defendant to withdraw his guilty plea, a district court should
consider:
(1) whether the defendant has offered credible
evidence that his plea was not knowing or not
voluntary; (2) whether the defendant has credibly
asserted his legal innocence; (3) whether there has
been a delay between entry of the plea and filing of
the motion; (4) whether the defendant has had close
assistance of counsel; (5) whether withdrawal will
cause prejudice to the government; and (6) whether
withdrawal will inconvenience the court and waste
judicial resources.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000)
(citation omitted).
White argued that he was legally innocent of the
offense of conviction because none of his prior convictions
qualified as predicate offenses for conviction. White is
correct. White’s prior convictions consisted of Class H and
Class I felonies under North Carolina law. Moreover, at the
time of his convictions, his prior record level was never above
a level II. Under North Carolina law, the maximum term of
imprisonment for a Class H felony with a record level of II is
twelve months and the maximum term for a Class I felony is ten
months. See N.C. Gen. Stat. § 15A-1340.17(d) (2007).
Therefore, White could not have received a term of imprisonment
exceeding twelve months for any of his prior convictions.
In United States v. Simmons, 649 F.3d 237 (4th Cir.
2011) (en banc), we determined that an offense is not punishable
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by a term exceeding one year of imprisonment if the defendant
could not have actually received more than one year of
imprisonment for that offense, based on his prior criminal
history and other factors. As White could not have received a
term exceeding one year of imprisonment for his prior offenses,
he did not have a qualifying predicate offense for a conviction
under § 922(g)(1). Therefore, White is legally innocent of the
offense of conviction.
Accordingly, we reverse the judgment and remand 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
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