United States v. Rodney Burrell , 456 F. App'x 238 ( 2011 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 11-4185
    UNITED STATES OF AMERICA,
    Plaintiff – Appellee,
    v.
    RODNEY BURRELL,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.  James C. Dever III,
    District Judge. (5:10-cr-00056-D-1)
    Submitted:   November 3, 2011               Decided:   November 29, 2011
    Before MOTZ, SHEDD, and WYNN, Circuit Judges.
    Affirmed in part, vacated in part and remanded by unpublished
    per curiam opinion.
    Christopher R. Pudelski, LAW OFFICES OF CHRISTOPHER R. PUDELSKI,
    Washington, D.C., for Appellant.      Thomas G. Walker, United
    States Attorney, Jennifer P. May-Parker, Kristine L. Fritz,
    Assistant United States Attorneys, Raleigh, North Carolina, for
    Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Rodney Burrell was convicted following his guilty plea
    to possession with intent to distribute five grams or more of
    cocaine base and aiding and abetting another in the same, in
    violation of 
    21 U.S.C. § 841
    (a)(1) (2006) and 
    18 U.S.C. § 2
    (2006).     At sentencing, Burrell asserted that his prior North
    Carolina    conviction   for   possession   with   intent    to   sell   and
    deliver marijuana (“marijuana conviction”) did not qualify as a
    felony controlled substance offense, as required for the career
    offender enhancement, U.S. Sentencing Guidelines Manual (“USSG”)
    § 4B1.1 (2010), because his sentence for that conviction did not
    exceed twelve months’ imprisonment. 1       The district court denied
    the objection, relying on United States v. Harp, 
    406 F.3d 242
    ,
    246 (4th Cir. 2005), classified Burrell a career offender, and
    sentenced Burrell to 300 months’ imprisonment.              Burrell timely
    appealed.
    In his opening brief, Burrell reasserted the argument
    that his North Carolina marijuana conviction was not punishable
    by imprisonment for a term exceeding one year and, thus, that
    the conviction could not serve as a predicate for the career
    1
    There is no dispute that Burrell’s North Carolina
    conviction   for  voluntary  manslaughter, for   which  Burrell
    received a thirty-eight to fifty-five month sentence, qualified
    as a predicate felony crime of violence for purposes of the
    career offender designation.
    2
    offender   enhancement.          After   briefing      was    completed,     Burrell
    filed a motion to vacate his sentence and to remand this case to
    the district court for resentencing in light of United States v.
    Simmons, 
    649 F.3d 237
     (4th Cir. 2011) (en banc).                   The Government
    consents to the remand.           We grant the motion to remand, vacate
    Burrell’s sentence, and remand this case to the district court
    for   resentencing.        Further,      we   affirm     Burrell’s      conviction,
    which is not challenged on appeal.
    Burrell’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     Burrell       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 Burrell’s sentence, 2 and remand this
    2
    We of course fault neither the Government nor the district
    court for relying on, and applying, unambiguous circuit
    authority at the time of Burrell’s sentencing.
    3
    case to the district court for resentencing. 3       Finally, we affirm
    Burrell’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
    3
    Burrell also asserts that he should be resentenced in
    accordance with the Fair Sentencing Act of 2010, Pub. L. No.
    111–220, 
    124 Stat. 2372
     (2010) (codified in scattered sections
    of 21 U.S.C.).      Because we are remanding this case for
    resentencing in light of Simmons, we decline to address this
    issue, leaving it instead for the district court to consider in
    the first instance.
    4
    

Document Info

Docket Number: 11-4185

Citation Numbers: 456 F. App'x 238

Judges: Motz, Per Curiam, Shedd, Wynn

Filed Date: 11/29/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023