US v. Bobby Hunt, No. 14-6703 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-6703 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. BOBBY RAY HUNT, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Louise W. Flanagan, District Judge. (7:09-cr-00034-FL-1; 7:12-cv-00230-FL) Submitted: August 7, 2015 Decided: September 10, 2015 Before SHEDD and AGEE, Circuit Judges, and DAVIS, Senior Circuit Judge. Vacated and remanded by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Halerie F. Mahan, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Shalika S. Kotiya, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Bobby Ray Hunt pleaded guilty to possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1) (2012). The district court initially found that Hunt qualified for enhanced statutory U.S.C. penalties § 924(c) under (2012) statutory mandatory Following his the Armed (“ACCA”), minimum unsuccessful of Career and 180 appeal of Criminal sentenced months the of ACCA Act, 18 to the him imprisonment. finding, Hunt filed a 28 U.S.C. § 2255 (2012) motion, arguing that the ACCA enhancement no longer applied following this court’s decision in United States banc). v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en The district court concluded that Simmons did not apply to the ACCA determination and that, in any event, Hunt was still an armed career criminal following Simmons. The court, however, granted Hunt a certificate of appealability and Hunt appealed. While States v. Hunt’s Newbold, June 30, 2015). appeal ___ was F.3d pending, ___, 2015 WL we decided 3960906 United (4th Cir. In Newbold, we concluded that Simmons applies to the determination of whether a prior offense is predicate under the ACCA and that such a claim may be raised in a § 2255 proceeding. Id. at *3-*5. Based on this decision, we vacate the district court’s order and remand for reconsideration. “In reviewing the district court's determination that [Hunt] is an armed career criminal, we review factual findings 2 for clear States v. error Davis, and 689 legal F.3d conclusions 349, 355 de (4th novo.” Cir. United 2012). “The Government bears the burden of proving by a preponderance of the evidence that a defendant committed a predicate [serious drug offense]—the same standard that applies to any other sentencing factor.” United States. v. McDowell, 745 F.3d 115, 120 (4th Cir. 2014), cert. denied, 135 S. Ct. 942 (2015). Under the ACCA, a defendant convicted of violating § 922(g) is subject to a statutory minimum sentence of 15 years of imprisonment if he has sustained three prior convictions felonies or serious drug offenses. for either violent 18 U.S.C. § 924(e). A serious drug offense is defined, in part, as a state offense involving manufacturing, distributing, or possessing with intent to distribute a controlled substance, “for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). In the proceedings below, the district court concluded that Hunt’s prior uninhabited North house and Carolina 1988 convictions convictions for for burning an counts of two possession with intent to deliver marijuana qualified as ACCA predicates, and that Hunt’s 1981 convictions for possession with intent to deliver and delivery of controlled substances did not so qualify. Hunt does not challenge these findings. The court also determined that Hunt’s 1987 convictions for possession with 3 intent to deliver and delivery of controlled substances were serious drug offenses under the ACCA, and Hunt argues on appeal that this finding was error. In Newbold, we considered whether a maximum term of 10 years of imprisonment was prescribed for Newbold’s 1984 North Carolina conviction for controlled substance. possession with intent to 2015 WL 3960906, at *5-*7. deliver a Based on the sentencing court’s failure to articulate aggravating factors to expose Newbold to a sentence above the three-year presumptive term up to the statutory maximum term of 10 years, and the failure of the judgment to specify whether the sentencing court actually imposed a sentence above that three-year presumptive term, we concluded that there was no evidence in the record to support the conclusion that the offense punishable by 10 years of imprisonment. determination, we conclude that the Id. of conviction was In light of this district court should reconsider its determinations that Hunt’s 1981 convictions were not serious drug offenses under the ACCA and that Hunt’s 1987 convictions were serious drug offenses. Accordingly, we vacate the district court’s order and remand with instructions to reconsider these issues in light of Newbold. legal We dispense with oral argument because the facts and contentions are adequately 4 presented in the materials before this court and argument would not aid in the decisional process. VACATED AND REMANDED 5
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