United States v. Cesar Alvarado , 451 F. App'x 311 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4402
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CESAR AUGUSTO GOMEZ ALVARADO,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00202-TDS-1)
Submitted: October 7, 2011 Decided: October 20, 2011
Before GREGORY, AGEE, and DAVIS, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Louis C. Allen, III, Federal Public Defender, Mireille P.
Clough, Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. Terri-Lei O’Malley, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cesar Augusto Gomez Alvarado was convicted following
his guilty plea to illegal reentry by a previously removed
felon, in violation of 8 U.S.C. § 1326(a), (b)(1) (2006). At
sentencing, Alvarado challenged whether his prior North Carolina
breaking and entering conviction qualified as a felony crime of
violence, as required for the sixteen-level enhancement
applicable pursuant to U.S. Sentencing Guidelines Manual
§ 2L1.2(b)(1)(A)(ii) (2010), because his sentence for that
conviction did not exceed twelve months’ imprisonment. The
district court denied the objection, relying on United States v.
Harp, 406 F.3d 242, 246 (4th Cir. 2005), and sentenced Alvarado
to eighty months’ imprisonment. Alvarado timely appealed.
In his opening brief, Alvarado reasserted his argument
that his North Carolina breaking and entering 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 sixteen-level increase in his base offense
level. Prior to the completion of briefing, the Government
moved to remand the case to the district court for resentencing
in light of United States v. Simmons, 649 F.3d 237 (4th Cir.
2011) (en banc). Alvarado joins the Government’s motion. We
grant the motion to remand, vacate Alvarado’s sentence, and
remand this case to the district court for resentencing.
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Further, we affirm Alvarado’s conviction, which is not
challenged on appeal.
Alvarado’s prior North Carolina 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 sentences applicable under North Carolina’s
structured sentencing scheme). When Alvarado raised this
argument in the district court, it was foreclosed by our
decision in Harp. Subsequently, however, we overruled Harp with
our en banc decision in Simmons, in which we sustained a similar
argument in favor of the defendant. See Simmons, 649 F.3d at
241, 246-47. In view of our holding in Simmons, we grant the
motion to remand, vacate Alvarado’s sentence, and remand this
case to the district court for resentencing. * Further, we affirm
Alvarado’s conviction. 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
*
We of course do not fault the district court for its
reliance upon, and application of, unambiguous circuit authority
at the time of Alvarado’s sentencing.
3