US v. Xavier Blackwood

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying as moot Motion to remand case [998679806-2] Originating case number: 1:08-cr-00258-WO-1 Copies to all parties and the district court/agency. [998696944].. [09-4762]

Appeal: 09-4762

Document: 32

Date Filed: 10/11/2011

Page: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4762

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
XAVIER ANTWONE BLACKWOOD,
Defendant - Appellant.

On Remand from the Supreme Court of the United States.
(S. Ct. No. 09-11213)

Submitted:

September 22, 2011

Decided:

October 11, 2011

Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Louis C. Allen, III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant.
Terry Michael Meinecke, Assistant
United
States
Attorney,
Greensboro,
North
Carolina,
for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 09-4762

Document: 32

Date Filed: 10/11/2011

Page: 2 of 4

PER CURIAM:
Xavier

Antwone

Blackwood

pled

guilty

pursuant

to

a

written plea agreement to maintaining a drug-involved premises,
21 U.S.C. § 856(a)(1), (b) (2006), and possession of a firearm
after having previously been convicted of a crime punishable by
imprisonment

for

§§ 922(g)(1),
Information

a

term

924(a)(2)

of

Prior

exceeding

(2006).

Conviction

one

The
pursuant

year,

18

Government
to

21

U.S.C.

filed

U.S.C.

§

an
851

(2006), stating that Blackwood committed the subject offenses
after a prior state felony drug conviction for possession with
intent to sell and deliver cocaine (two counts) became final.
Blackwood was sentenced to eighty-five months’ imprisonment.

On

appeal, counsel filed a brief pursuant to Anders v. California,
386

U.S.

738

meritorious

(1967),

issues

for

stating

in

appeal,

his

but

view

there

questioning

were

whether

no
the

district court erred in finding Blackwood’s prior North Carolina
drug conviction for which Blackwood received a sentence of six
to eight months “a crime punishable by imprisonment for a term
exceeding
affirmed

one
the

year”

under

district

18

U.S.C.

court’s

§

judgment.

922(g).
United

This

court

States

v.

Blackwood, No. 09-4762, 2010 WL 707682 (4th Cir. Mar. 2, 2010)
(unpublished).
On October 4, 2010, the Supreme Court of the United
States granted Blackwood’s petition for a writ of certiorari,
2

Appeal: 09-4762

Document: 32

Date Filed: 10/11/2011

Page: 3 of 4

vacated this court’s judgment and remanded the case for further
consideration in light of Carachuri-Rosendo v. Holder, 560 U.S.
__, 130 S. Ct. 2577 (2010).

On March 23, 2011, the appeal was

placed in abeyance for United States v. Simmons, 649 F.3d 237,
2011

WL

3607266

(4th

Cir.

Aug.

17,

2011)

(en

banc).

On

September 16, 2011, Blackwood filed a joint motion to remand for
resentencing

in

light

of

Simmons.

We

affirm

Blackwood’s

conviction for maintaining a drug-involved premises, vacate the
§ 922(g)
court

conviction

for

and

sentence

reconsideration

of

the

and

remand

conviction

to

the

and

district

sentence

in

light of Carachuri-Rosendo and Simmons.
In

Simmons,

this

court

held

that

a

North

Carolina

offense may not be classified as a felony based upon the maximum
aggravated sentence that could be imposed upon a repeat offender
if

the

individual

sentence.
N.C.

defendant

was

not

eligible

for

such

See Simmons, 2011 WL 3607266, at *3, *7-*8.

Gen.

Stat.

§ 15A-1340.17(c)-(d),

assuming

a

Under

counsel’s

assertions in his Anders brief are correct, the most Blackwood
faced

at

sentencing

Blackwood’s

May

22,

was
2006

eight

months.

conviction

Thus,

should

under

not

have

Simmons,
been

a

predicate felony for the § 922(g) conviction because it was not
punishable by a sentence exceeding a year.
In accordance with Anders, we have reviewed the record
in this case and have found no other meritorious issues for
3

Appeal: 09-4762

Document: 32

appeal.
for

Date Filed: 10/11/2011

Page: 4 of 4

We therefore affirm Blackwood’s conviction and sentence

maintaining

a

drug-involved

premises,

vacate

Blackwood’s

conviction and sentence for being a felon in possession of a
firearm

and

remand

with

consider

the

conviction

Rosendo

and

Simmons

directions
and

and

that

the

in

light

sentence

that

the

court

district
of

court

Carachuri-

should

make

the

determination in the first instance as to whether the predicate
conviction is a felony or misdemeanor and that the conviction
should be reimposed if the predicate conviction is determined to
be a felony.

We deny as moot the joint motion to remand for

resentencing.
Blackwood,

This

in

writing,

court
of

requires

the

right

to

that

counsel

petition

Court of the United States for further review.

the

inform
Supreme

If Blackwood

requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation.

Counsel’s

motion must state that a copy thereof was served on Blackwood.
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

4