US v. Tahji Eley, No. 11-4119 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4119 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TAHJI ANTONIO ELEY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (5:10-cr-00196-F-3) Submitted: November 17, 2011 Decided: November 29, 2011 Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion. Bridgett Britt Aguirre, Fuquay-Varina, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Tahji Antonio Eley pled guilty, pursuant to a plea agreement, to conspiracy to commit robbery, in violation of 18 U.S.C. § 1951 (2006), using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) (2006), and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006). month term decision of in imprisonment. United (4th Cir. 2011) (en Eley States banc), Eley was sentenced to a 244- v. Eley appealed. Following 649 Simmons, asserted he was F.3d our 237 improperly sentenced as a career offender, and he filed an unopposed motion to remand the case for resentencing. We affirm in part, vacate in part, and remand for further proceedings. Based on his prior North Carolina convictions, district court sentenced Eley as a career offender. is now clear that one of his predicate the However, it convictions was punishable by imprisonment for a term exceeding one year. not See N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting minimum and maximum sentences applicable under North Carolina s structured sentencing scheme). When Eley argued in the district court that his convictions could not serve as predicate offenses for the purposes of career offender status, the argument was foreclosed by our decision (4th Cir. 2005). in United States v. Harp, 406 F.3d 242 Subsequently, however, we overruled Harp with 2 our en banc decision in Simmons, in which we sustained a similar argument in favor of the defendant. In view of our holding in Simmons, we vacate Eley s sentence and remand for further proceedings. determine from the record before us Because we cannot whether, in light of Simmons, Eley s § 922(g)(1) conviction is supported by a prior felony conviction, we vacate Eley s § 922(g)(1) conviction and remand for the district to make that determination. The district court shall reinstate the § 922(g) conviction in the event it conviction. motion to concludes Eley has a qualifying prior felony We affirm Eley s remaining convictions and deny the remand as moot. 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 the decisional process. AFFIRMED IN PART, VACATED IN PART, AND REMANDED 3
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