US v. Michael White, No. 09-4257 (4th Cir. 2011)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on January 25, 2010.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4257 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MICHAEL LEWIS WHITE, Defendant - Appellant. On Remand from the Supreme Court of the United States. (S. Ct. No. 09-10491) Submitted: September 15, 2011 Decided: October 20, 2011 Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Reversed and remanded by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant 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, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael Lewis White pleaded guilty to possession of a firearm after punishable by having a previously term of been imprisonment convicted exceeding violation of 18 U.S.C. § 922(g)(1) (2006). of one a crime year, in White then moved to withdraw his guilty plea, arguing that he did not have any prior convictions that were exceeding one year. sentenced White punishable by a term of imprisonment The district court denied his motion and to 120 months of imprisonment. This court affirmed 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 See United States v. White, 362 F. App x 348 (2010) (unpublished). The Supreme Court granted White s petition for certiorari, vacated the judgment, and remanded the appeal to this court for reconsideration in light of Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010). (2010). For See White v. United States, 131 S. Ct. 84 the reasons that follow, we reverse White s conviction. This motion to United States court withdraw v. (citation omitted). reviews a guilty Dyess, 478 a district court s plea for abuse F.3d 224, 237 of (4th denial of a discretion. Cir. 2007) A defendant seeking to withdraw his guilty plea bears the burden of demonstrating that withdrawal should be granted. Id. (citation omitted). 2 In deciding whether to permit a defendant to withdraw his guilty plea, a district court should consider: (1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary; (2) whether the defendant has credibly asserted his legal innocence; (3) whether there has been a delay between entry of the plea and filing of the motion; (4) whether the defendant has had close assistance of counsel; (5) whether withdrawal will cause prejudice to the government; and (6) whether withdrawal will inconvenience the court and waste judicial resources. United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000) (citation omitted). White offense of argued conviction predicate that he because was none offenses legally of for his innocent prior of the convictions qualified as conviction. correct. White s prior convictions consisted of Class H and Class I felonies under North Carolina law. White is Moreover, at the time of his convictions, his prior record level was never above a level II. Under North Carolina law, the maximum term of imprisonment for a Class H felony with a record level of II is twelve months and the maximum term for a Class I felony is ten months. See N.C. Gen. Stat. § 15A-1340.17(d) (2007). Therefore, White could not have received a term of imprisonment exceeding twelve months for any of his prior convictions. In United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), we determined that an offense is not punishable 3 by a term exceeding one year of imprisonment if the defendant could not imprisonment have for actually that received offense, history and other factors. more based on than his one year prior of criminal As White could not have received a term exceeding one year of imprisonment for his prior offenses, he did not have a qualifying predicate offense for a conviction under § 922(g)(1). Therefore, White is legally innocent of the offense of conviction. Accordingly, we reverse the judgment and remand for further proceedings. The clerk is directed to issue the mandate forthwith. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. REVERSED AND REMANDED 4
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