United States v. Sasan Ghazal , 446 F. App'x 557 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5116
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SASAN GHAZAL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00053-RJC-1)
Submitted: September 12, 2011 Decided: September 14, 2011
Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Claire J. Rauscher, Ann Loraine Hester, Rahwa Gebre-Egziabher,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sasan Ghazal appeals his thirty-three month sentence
for possession of a pipe bomb in violation of 26 U.S.C. §§ 5841,
5861(c), (d), (i), 5871 (2006). Ghazal argues that his sentence
was procedurally unreasonable because the district court erred
in calculating his Guidelines sentence by finding that he was a
“prohibited person” for purposes of U.S. Sentencing Guidelines
Manual (“USSG”) § 2K2.1(a)(4)(B) (2008). A sentence is
procedurally unreasonable if the district court improperly
calculated the offender’s Guidelines range of imprisonment.
United States v. Boulware, 604 F.3d 832, 837-38 (4th Cir. 2010).
Ghazal claims that he was not a “prohibited person”
for purposes of USSG § 2K2.1(a)(4)(B) because he had not been
previously convicted of a crime punishable by imprisonment for a
term exceeding a year. Ghazal’s criminal history disclosed a
2006 North Carolina conviction for possession of ecstasy, but,
under North Carolina’s structured sentencing regime, Ghazal
could not have received a custodial sentence of more than a year
given his criminal history. When Ghazal raised this argument in
the district court, it was foreclosed by our decision in United
States v. Harp, 406 F.3d 242 (4th Cir. 2005). Subsequently,
however, we overruled Harp with our en banc decision in United
States v. Simmons, __ F.3d __, 2011 WL 3607266 (4th Cir.
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Aug. 17, 2011) (en banc). Pursuant to the dictates of Simmons,
we sustain Ghazal’s objection here.
Accordingly, the district court’s judgment is affirmed
as to the unchallenged conviction, vacated as to the sentence,
and the case is remanded for resentencing. We deny Ghazal’s
pending motion to file a supplemental brief. 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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