US v. Morey Champion, No. 09-5084 (4th Cir. 2011)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on June 23, 2010.
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ON REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5084 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MOREY BERNAL CHAMPION, Defendant Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:08-cr-00381-FL-1) Submitted: September 30, 2011 Before MOTZ and Circuit Judge. KING, Circuit Decided: Judges, and October 18, 2011 HAMILTON, Senior Reversed and remanded by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, Eric J. Brignac, Research and Writing Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Morey Bernal Champion pleaded guilty to possession of a firearm after by punishable having term a previously of been imprisonment convicted exceeding of one a crime year, in violation of 18 U.S.C. § 922(g)(1) (2006), conditioned on his appeal of the district court s denial of his motion to dismiss the indictment. fifty-one The months of district court imprisonment. sentenced This court Champion affirmed to his conviction on appeal in reliance upon our decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005). See United States v. Champion, 384 F. App x 245 (2010) (unpublished). subsequently upon the granted Supreme Champion s Court s petition decision Holder, 130 S. Ct. 2577 (2010). in for rehearing, We based Carachuri-Rosendo v. Champion has now filed a motion to vacate his conviction based on this court s recent decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). For the reasons that follow, we reverse Champion s conviction. Champion s prior conviction for possession with intent to deliver marijuana was a Class I felony under North Carolina law. Moreover, at the time of his conviction, his prior record level was I. Under North Carolina law, the maximum term of imprisonment for a Class I felony with a record level of I and no finding by the sentencing court of aggravating or mitigating 3 factors is eight months. (d) (2007). of See N.C. Gen. Stat. § 15A-1340.17(c), Therefore, Champion could not have received a term imprisonment exceeding twelve months for his prior conviction. In Simmons, we determined that an offense is not punishable by a term exceeding one year of imprisonment if the defendant could not have actually received more than one year of imprisonment for that offense, history and other factors. based on his prior criminal As Champion could not have received a term exceeding one year of imprisonment for his prior offense, he did not have a qualifying predicate offense for a conviction under § 922(g)(1). Therefore, Champion is innocent of the offense of conviction. Accordingly, we reverse the judgment, deny Champion s motion as moot, and remand for further proceedings. is directed to issue the mandate forthwith. oral argument adequately because presented in the the facts and materials The clerk We dispense with legal before contentions the court are and argument would not aid the decisional process. REVERSED AND REMANDED 4
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