United States v. Natwoine Austin , 448 F. App'x 402 ( 2011 )


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  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 11-4489
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    NATWOINE AUSTIN,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Charlotte.   Frank D. Whitney,
    District Judge. (3:10-cr-00099-FDW-1)
    Submitted:   September 29, 2011           Decided:   October 4, 2011
    Before KING, GREGORY, and DUNCAN, Circuit Judges.
    Reversed and remanded by unpublished per curiam opinion.
    Matthew Segal, Federal Defender, Asheville, North Carolina, for
    Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
    Asheville, North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Natwoine       Austin       was      convicted              following        his
    conditional     guilty     plea    to    possession          of     a    firearm    by     a
    convicted felon, in violation of 
    18 U.S.C. § 922
    (g)(1) (2006).
    The     district   court     sentenced        Austin    to        twenty-one       months’
    imprisonment.      Austin reserved the right to appeal the district
    court’s     determination      that     his     prior    North          Carolina    state
    conviction for possession of a schedule I controlled substance
    qualified as a felony for the purpose of adjudging him guilty
    under § 922(g)(1).         Austin timely appealed.                Prior to submitting
    an opening brief, Austin moved to vacate his conviction and to
    remand the case to the district court, arguing that his North
    Carolina conviction was not punishable by imprisonment for a
    term exceeding one year and, thus, that the conviction could not
    serve as the necessary predicate for the § 922(g)(1) charge.                             In
    light of our decision in United States v. Simmons, 
    649 F.3d 237
    ,
    
    2011 WL 3607266
     (4th Cir. Aug. 17, 2011) (en banc), we reverse
    and remand.
    Under 
    18 U.S.C. § 922
    (g)(1), it is unlawful for any
    person convicted of a crime punishable by imprisonment for a
    term exceeding one year to possess a firearm.                           Austin’s prior
    North     Carolina     state      conviction       was        not       punishable        by
    imprisonment for a term exceeding one year.                       See N.C. Gen. Stat.
    §   15A-1340.17(c)-(d)       (2009)     (setting       out    minimum      and     maximum
    2
    sentences        applicable          under         North    Carolina’s           structured
    sentencing scheme).             When Austin raised this argument in the
    district    court,      it    was    foreclosed       by    our    decision       in   United
    States     v.     Harp,       
    406 F.3d 242
    ,    246     (4th     Cir.       2005).
    Subsequently,      however,         we    overruled        Harp    with     our    en     banc
    decision in Simmons, in which we sustained a similar argument in
    favor of the defendant.               In view of our holding in Simmons, we
    reverse Austin’s conviction, deny as moot his motion to vacate,
    and     remand    the     case       to    the      district       court    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
    *
    We of course do not fault the Government or the district
    court for their reliance upon, and application of, unambiguous
    circuit authority at the time of Austin’s indictment and
    conviction.
    3
    

Document Info

Docket Number: 11-4489

Citation Numbers: 448 F. App'x 402

Judges: Duncan, Gregory, King, Per Curiam

Filed Date: 10/4/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023