United States v. Gibson , 115 F. App'x 138 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6341
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GROVER CARROLL GIBSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. David C. Norton, District Judge.
(CR-99-102; CA-02-541-2)
Submitted: October 3, 2003 Decided: December 14, 2004
Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Grover Carroll Gibson, Appellant Pro Se. Marshall Prince, OFFICE
OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Grover Carroll Gibson appeals the district court’s denial
of his 28 U.S.C. § 2255 (2000) motion. The district court granted
a certificate of appealability. On appeal, Gibson argues that he
received ineffective assistance of counsel when his attorney failed
to object to his offense level adjustment under U.S. Sentencing
Guidelines Manual § 2K2.1(b)(1)(B) (1998) (adjustment based on the
number of firearms involved in the offense). Specifically, Gibson
asserts that, because he was permitted under North Carolina law to
possess firearms in his home, see N.C. Gen. Stat. § 14-415.1(a)
(Supp. 1998), the firearms recovered from his home could not be
used to calculate the number of firearms involved in his offense.
See USSG § 2K2.1, comment. (n.9) (“For purposes of calculating the
number of firearms under subsection (b)(1), count only those
firearms that were . . . unlawfully possessed.”).
However, we find that any objection by counsel would have
been futile. Federal law, 18 U.S.C. § 921(a)(20) (2000), does
prevent federal prosecution for a felon in possession of a firearm
when a state has restored a person’s civil rights on the predicate
felony. But when, as here, a state restricts a felon from
possessing firearms in certain situations (e.g., outside of his
home or business), 18 U.S.C. § 922(g) prohibits him from possessing
any guns at all, even those permitted under state law. See United
States v. Caron, 524 U.S. 308, 315-17 (1998). Thus, Gibson has
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failed to make a prima facie showing that he received ineffective
assistance of counsel. See Strickland v. Washington, 466 U.S. 668,
688-89 (1984). We deny Gibson’s motions for summary judgment and
to appoint counsel. Accordingly, we affirm the order of the
district court. 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
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