United States v. Anjuan Terry , 449 F. App'x 259 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4573
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANJUAN DANGELO TERRY,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:10-cr-00307-NCT-1)
Submitted: September 29, 2011 Decided: October 7, 2011
Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Robert Albert Jamison Lang, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anjuan Dangelo Terry appeals his ninety-four-month
sentence following his guilty plea to one count of possession of
a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2006). On appeal, Terry argues that
the district court erred in calculating his base offense level
under U.S. Sentencing Guidelines Manual (“USSG”) § 2K2.1(a)(2)
(2010) because one of the two prior convictions on which that
Guideline was based — Terry’s North Carolina state conviction
for possession with the intent to sell or deliver cocaine — was
not punishable by imprisonment for a term exceeding one year.
Following the filing of Terry’s opening appellate brief, the
parties filed a joint motion to remand this case for
resentencing in light of United States v. Simmons, 649 F.3d 237,
2011 WL 3607266 (4th Cir. 2011) (en banc). We affirm Terry’s
conviction, vacate his sentence, and remand for resentencing.
Under USSG § 2K2.1(a)(2), a defendant’s base offense
level is twenty-four if he commits any part of the subject
offense “subsequent to sustaining at least two felony
convictions of either a crime of violence or a controlled
substance offense.” A prior offense does not qualify as a
“felony conviction” for purposes of the Guideline unless it is
punishable by “death or imprisonment for a term exceeding one
year.” USSG § 2K2.1, cmt. n.1.
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Terry argues that his prior state conviction was not
punishable by more than one year of imprisonment. See N.C. Gen.
Stat. § 15A-1340.17(c)-(d) (2009) (setting forth minimum and
maximum sentences applicable under the North Carolina Structured
Sentencing Act). When Terry raised this argument in the
district court, it was foreclosed by our panel decisions in
United States v. Simmons, 635 F.3d 140, 146 (4th Cir. 2011)
(holding that, to determine whether a North Carolina conviction
for a crime is punishable by a prison term exceeding one year, a
court is to “consider the maximum aggravated sentence that could
be imposed for that crime upon a defendant with the worst
possible criminal history” (internal quotation marks and
emphasis omitted)), and United States v. Harp, 406 F.3d 242, 246
(4th Cir. 2005) (same). The en banc decision in Simmons
reversed this precedent, holding that a prior North Carolina
offense is punishable by imprisonment for a term exceeding one
year only if the particular defendant is eligible for such a
sentence under the applicable statutory scheme, taking into
account his criminal history and the nature of his offense.
Simmons, 649 F.3d at ___, 2011 WL 3607266, at *8.
Applying the en banc decision in Simmons here, we
conclude after review of the state judgment that Terry’s prior
North Carolina conviction was not punishable by imprisonment for
a term exceeding one year. The offense was a class H felony,
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and the state judgment reveals a prior record level of II.
Under the North Carolina Structured Sentencing Act, Terry could
not have been imprisoned for a term exceeding one year for that
conviction. N.C. Gen. Stat. § 15A-1340.17(c)-(d). The
conviction was therefore not a proper predicate conviction for
purposes of USSG § 2K2.1(a)(2).
Accordingly, we grant the parties’ joint motion,
vacate Terry’s sentence, and remand to the district court for
resentencing. Terry does not challenge his conviction on
appeal, and we therefore affirm it. 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 IN PART,
VACATED IN PART,
AND REMANDED
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