US v. Marta Perry, No. 09-5062 (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ON REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5062 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MARTA ERWIN PERRY, Defendant - Appellant.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. (5:09-cr-00106-FL-1) Submitted: September 30, 2011 Before MOTZ and Circuit Judge. KING, Circuit Decided: Judges, and October 19, 2011 HAMILTON, Senior Reversed and remanded by unpublished per curiam opinion.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, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, William M. Gilmore, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marta Erwin Perry pleaded guilty to possession of a firearm after punishable by having a previously term of been imprisonment convicted exceeding of a one crime year, in violation of 18 U.S.C. § 922(g)(1) (2006), conditioned on his right to appeal the district court s denial of his motion to dismiss the indictment. The district court sentenced Perry to eighty-four months of imprisonment. This court affirmed his conviction on appeal in reliance upon our decision in United States v. 406 F.3d Perry, States v. Harp, 384 F. 242 (4th 249 App x Cir. 2005). (2010) See United (unpublished). We subsequently granted Perry s petition for rehearing, based upon the Supreme Court s decision in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010). conviction based on Perry has now filed a motion to vacate his this court s recent decision in United States v. Simmons, 2011 WL 3607266 (Aug. 17, 2011) (en banc). For the reasons that follow, we reverse Perry s conviction. Perry s prior convictions consisted Class H felonies under North Carolina law. of Class I and Moreover, at the time of his convictions, Perry s 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. 2 § 15A-1340.17(d) (2007). Therefore, Perry could not have received a term of imprisonment exceeding twelve months for his prior convictions. 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 Perry 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, Perry is innocent of the offense of conviction. Accordingly, we reverse the judgment, deny Perry s motion to vacate as moot, and remand for further proceedings. The clerk dispense is with directed oral to issue argument the because mandate the forthwith. facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. REVERSED AND REMANDED 3
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