United States v. Steve Gibson, Jr. , 448 F. App'x 358 ( 2011 )


Menu:
  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 11-4160
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    STEVE GIBSON, JR., a/k/a Gib,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    South Carolina, at Florence.   Terry L. Wooten, District Judge.
    (4:10-cr-00596-TLW-1)
    Submitted:   September 22, 2011          Decided:   September 30, 2011
    Before MOTZ, SHEDD, and DAVIS, Circuit Judges.
    Affirmed in part, vacated in part, and remanded by unpublished
    per curiam opinion.
    William F. Nettles, IV, Assistant Federal Public Defender,
    Florence, South Carolina, for Appellant. Carrie Fisher Sherard,
    Assistant United States Attorney, Greenville, South Carolina,
    for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Pursuant to a plea agreement, Steve Gibson, Jr., pled
    guilty to possession of a firearm and ammunition by a convicted
    felon, in violation of 
    18 U.S.C. §§ 922
    (g)(1), 924(a)(2), and
    924(e) (2006).         The parties stipulated in the plea agreement to
    an advisory Sentencing Guidelines range of 188 to 235 months’
    imprisonment if Gibson was designated an armed career criminal.
    See Fed. R. Crim. P. 11(c)(1)(C).                The district court sentenced
    Gibson as an armed career criminal to 228 months’ imprisonment.
    Gibson appealed.
    Gibson’s counsel has filed a brief in accordance with
    Anders v. California, 
    386 U.S. 738
     (1967), stating that, in his
    view,    there    are     no     meritorious         grounds      for    appeal    but
    questioning the validity of Gibson’s guilty plea and his armed
    career criminal sentence.           Gibson filed a pro se supplemental
    brief asserting ineffective assistance of counsel at sentencing.
    For the reasons that follow, we affirm in part, vacate in part,
    and remand.
    Turning first to the validity of Gibson’s guilty plea,
    where,   as    here,    the    defendant       did   not   move   to    withdraw   his
    guilty plea in the district court, we review the adequacy of the
    plea for plain error.           United States v. Martinez, 
    277 F.3d 517
    ,
    525 (4th Cir. 2002).           Our review of the record on appeal leads
    us to conclude that the district court substantially complied
    2
    with    the    mandates          of    Rule    11       in     accepting         Gibson’s         plea.
    Moreover, the district court ensured that Gibson’s guilty plea
    was    knowing       and    voluntary        and       was    supported         by    a    sufficient
    factual basis.              United States v. DeFusco, 
    949 F.2d 114
    , 116,
    119-20 (4th Cir. 1991).
    The district court designated Gibson an armed career
    criminal based on two North Carolina state convictions involving
    assault       with     a     deadly        weapon       and    a     North       Carolina         state
    conviction       for       breaking        and/or      entering.           As    he       did    in    the
    district        court,           defense       counsel             argues        that           Gibson’s
    constitutional             rights     were     violated            because           the    predicate
    offenses supporting his armed career criminal designation                                             were
    not    charged       in    the    indictment           or    found    by     a   jury       beyond       a
    reasonable       doubt.             Because     prior         convictions             supporting         a
    defendant’s designation as an armed career criminal need not be
    charged in the indictment or found by a jury beyond a reasonable
    doubt,    this       argument         is    meritless.              See     United         States       v.
    Thompson, 
    421 F.3d 278
    , 284 n.4 (4th Cir. 2005) (holding that an
    indictment need not reference or list the prior convictions used
    to enhance a sentence); United States v. Cheek, 
    415 F.3d 349
    ,
    352-54 (4th Cir. 2005) (holding that prior convictions used as
    the basis for an armed career criminal sentence need not be
    charged in the indictment or proven beyond a reasonable doubt).
    3
    Although not raised by counsel and raised by Gibson
    only   in       the    context       of     an    ineffective         assistance      of   counsel
    claim, 1 Gibson’s armed career criminal designation is in question
    because his breaking and/or entering conviction may not qualify
    as a predicate offense.                     Because this issue is considered for
    the first time on appeal, we review it for plain error.                                     United
    States v. Hargrove, 
    625 F.3d 170
    , 184 (4th Cir. 2010), petition
    for cert. filed (Mar. 8, 2011).
    To     qualify        for    the    fifteen       year    mandatory        minimum
    punishment        under        the    Armed       Career       Criminal   Act       (“ACCA”),     
    18 U.S.C. § 924
    (e),         a     felon      in        possession    of    a    firearm      or
    ammunition        must     have        three      prior       convictions      for    a    violent
    felony or serious drug offense or both, committed on occasions
    different        from      one       another.           A    qualifying    offense         must   be
    punishable            by   a     term       exceeding           one    year.          
    18 U.S.C. § 924
    (e)(2)(B).                Under      North    Carolina’s         structured      sentencing
    scheme, sentences are calculated based on an offender’s criminal
    1
    In his pro se supplemental brief, Gibson contends that
    counsel was ineffective for failing to assert at sentencing that
    his breaking and entering conviction did not qualify as an armed
    career criminal predicate offense. Because the record does not
    conclusively show that Gibson was denied effective assistance of
    counsel, see United States v. McNamara, 
    74 F.3d 514
    , 516-17 (4th
    Cir. 1996) (holding that counsel’s failure to anticipate change
    in law does not amount to ineffective assistance), Gibson’s
    claim is not cognizable on direct appeal.      United States v.
    Richardson, 
    195 F.3d 192
    , 198 (4th Cir. 1999); United States v.
    King, 
    119 F.3d 290
    , 295 (4th Cir. 1997).
    4
    history    and      whether      his     offense        falls   within      the    mitigated,
    presumptive,        or     aggravated          range.        N.C.    Gen.    Stat.       §    15A-
    1340.17(c)-(d) (Lexis Nexis 2009).
    At   the     time    of    Gibson’s          conviction     and    sentencing,
    existing precedent established that a prior conviction for a
    violent    felony        or   serious        drug     offense       was    punishable        by   a
    prison    term      exceeding          one     year     if     the     maximum     aggravated
    sentence that would be imposed for that crime upon a defendant
    with the worst possible criminal history was more than a year.
    United    States      v.      Harp,      
    406 F.3d 242
    ,    246      (4th    Cir.   2005).
    Recently, however, we overruled Harp with our en banc decision
    in United States v. Simmons, 
    649 F.3d 237
    , 
    2011 WL 3607266
     (4th
    Cir. Aug. 17, 2011) (No. 08-4475), where we held that a North
    Carolina offense may not be classified as a felony based upon
    the maximum aggravated sentence that could be imposed upon a
    repeat offender if the individual defendant was not eligible for
    such a sentence.            Simmons, 
    2011 WL 3607266
    , at *3.
    Gibson      did   not     receive        a    sentence     exceeding      twelve
    months    on    his      breaking      and/or        entering    conviction        and       it   is
    unclear    from       the     record      on     appeal       whether      this    conviction
    exposed him to a sentence exceeding twelve months and therefore
    was properly counted as the third predicate offense qualifying
    him for armed career criminal designation.                           If not, the maximum
    sentence Gibson faced was ten years’ imprisonment, 18 U.S.C.
    5
    § 924(a)(2), a sentence well below the 228-month sentence he
    received.
    For these reasons, we affirm Gibson’s conviction, but
    vacate    his   sentence     and   remand     for   the      district    court     to
    consider Gibson’s sentence in light of Simmons. 2                       This court
    requires    that   counsel    inform   his    client,       in   writing,   of    the
    right to petition the Supreme Court of the United States for
    further    review.    If     the   client    requests       that   a   petition    be
    filed,    but   counsel    believes    that    such     a    petition    would    be
    frivolous, then counsel may move in this court for leave to
    withdraw from representation.          Counsel’s motion must state that
    a copy thereof was served on the client.                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
    2
    In accordance with Anders, we have reviewed the entire
    record and found no additional meritorious issues for appeal.
    6