US v. Edward Gardner, No. 10-4755 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4755 UNITED STATES OF AMERICA, Plaintiff Appellee, v. EDWARD JORGE GARDNER, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:08-cr-00177-NCT-1) Submitted: September 29, 2011 Decided: October 12, 2011 Before SHEDD, DUNCAN, and DAVIS, Circuit Judges. Affirmed in part, vacated in part and remanded by unpublished per curiam opinion. George E. Crump, III, Rockingham, North Carolina, for Appellant. Ripley Rand, United States Attorney, Robert A. J. Lang, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Edward Jorge Gardner pled guilty pursuant to a written plea agreement to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006), and was sentenced to 360 months imprisonment. At sentencing, Gardner s counsel objected to Gardner s designation as an armed career criminal under 18 U.S.C. § 924(e) (2006). Gardner s prior convictions Counsel asserted that some of could not count as predicate felonies because, under the North Carolina structured sentencing scheme, Gardner could not have received a sentence in excess of one year based on his prior record level. below that this argument was foreclosed Gardner conceded by this court s then-authoritative decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005), but he argued that Harp should be overruled. On appeal, Gardner again challenges the district court s conclusion that he had four previous violent felonies. Section 924(e) subjects a violator of section 922(g) to enhanced penalties if he has three previous convictions by any court . . . for a violent felony or a serious drug offense, or both. 18 U.S.C. § 924(e)(1). One of the statutory requirements for a violent felony is that it be punishable by imprisonment for a term exceeding Gardner raised one this year. argument 18 in 2 U.S.C. the § 924(e)(2)(B). district court, When it was foreclosed by Harp. 406 F.3d at 246 (holding that to determine whether a conviction is for a crime punishable by a prison term exceeding one year the court should consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history and not the maximum sentence that could be imposed on the actual defendant being sentenced). Subsequently, however, we overruled Harp with our en banc decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) hypothetical banc) aggravating inappropriate constitutes (en when a (holding factors determining felony). Our and that consideration criminal history whether a prior Simmons decision of is offense requires reconsideration of Gardner s sentence. We affirm Gardner s conviction, which he does not challenge on appeal, but we vacate his sentence and remand for resentencing in light of Simmons.1 Because we cannot determine from the current record whether, in light of Simmons, some or all of Gardner s prior convictions would constitute violent felonies under § 924(e), we express no opinion on that issue and 1 We of course do not fault the Government or the district court for application of unambiguous circuit authority at the time of Gardner s initial sentencing. 3 leave that determination for the district court on remand.2 We decline as their to address resolution resentencing. Gardner s may be remaining rendered claims unnecessary on by appeal, Gardner s 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 in the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 2 On resentencing, the district court should also consider whether Gardner has the requisite predicate felony convictions needed to calculate his base offense level under U.S. Sentencing Guidelines Manual § 2K2.1(a)(2). 4
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