US v. Natwoine Austin, No. 11-4489 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4489 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NATWOINE AUSTIN, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:10-cr-00099-FDW-1) Submitted: September 29, 2011 Decided: October 4, 2011 Before KING, GREGORY, and DUNCAN, Circuit Judges. Reversed and remanded by unpublished per curiam opinion. Matthew Segal, Federal Defender, Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Natwoine conditional Austin guilty plea was to convicted possession of following a firearm his by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006). The district imprisonment. court s court sentenced Austin to twenty-one months Austin reserved the right to appeal the district determination that his prior North Carolina state conviction for possession of a schedule I controlled substance qualified as a felony for the purpose of adjudging him guilty under § 922(g)(1). Austin timely appealed. Prior to submitting an opening brief, Austin moved to vacate his conviction and to remand the case to the district court, arguing that his North Carolina conviction was not punishable by imprisonment for a term exceeding one year and, thus, that the conviction could not serve as the necessary predicate for the § 922(g)(1) charge. In light of our decision in United States v. Simmons, 649 F.3d 237, 2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en banc), we reverse 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. Austin s prior North punishable Carolina state conviction was imprisonment for a term exceeding one year. § 15A-1340.17(c)-(d) (2009) (setting 2 out not by See N.C. Gen. Stat. minimum and maximum sentences applicable sentencing scheme). district States court, v. it North Carolina s structured When Austin raised this argument in the was Harp, Subsequently, under foreclosed 406 however, F.3d we by 242, overruled our decision in 246 (4th Cir. Harp with our United 2005). 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 reverse Austin s conviction, deny as moot his motion to vacate, and remand the proceedings. * forthwith. legal before The to clerk the is district directed court to for issue further the mandate We dispense with oral argument because the facts and contentions the case court are adequately and argument presented would not in aid the the materials decisional process. REVERSED AND REMANDED * We of course do not fault the Government or the district court for their reliance upon, and application of, unambiguous circuit authority at the time of Austin s indictment and conviction. 3
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