US v. Henry Smith, No. 11-4018 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4018 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HENRY MONTARIOUS SMITH, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:10-cr-00160-WO-1) Submitted: September 8, 2011 Decided: September 27, 2011 Before MOTZ, KING, and SHEDD, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. Louis C. Allen, Federal Public Defender, William C. Ingram, First Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, Graham T. Green, Assistant United States Attorney, WinstonSalem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Henry conditional conviction Montarious guilty of a plea crime Smith to was convicted possession of punishable by more following a firearm than one after year imprisonment, in violation of 18 U.S.C. § 922(g)(1) (2006). his of The district court sentenced Smith to 180 months of imprisonment. Smith reserved his right to appeal the district court s denial of his motion to dismiss the indictment. On appeal, Smith argues that his prior North Carolina state convictions for breaking and entering and attempted breaking and entering were not punishable by more than one year of imprisonment and thus are not predicate convictions pursuant to 18 U.S.C. § 922(g)(1). F.3d In light of United States v. Simmons, , 2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en banc), we vacate and remand. Under 18 U.S.C. § 922(g)(1), it is unlawful for any person convicted of a crime punishable by imprisonment for a term exceeding one year to possess a firearm. Smith s prior offenses specified in the § 922(g)(1) charge were punishable by not more than ten months imprisonment. See N.C. Gen. Stat. § 15A-1340.17(c)-(d) (setting and applicable North regime). under out minimum Carolina s maximum structured sentences sentencing When Smith raised this argument in the district court, it was foreclosed by our decision in United States v. Harp, 406 2 F.3d 242 (4th Cir. 2005). Harp with the en banc Subsequently, however, we overruled decision in Simmons, where a similar argument was presented and sustained in favor of the defendant. In view court s of our judgment holding in Simmons, and remand to we the vacate the district district court for proceedings consistent with this opinion. 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. VACATED AND REMANDED 3
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