US v. Morey Champion

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying as moot Motion to vacate [998675212-2]. Originating case number: 5:08-cr-00381-FL-1. Copies to all parties and the district court/agency. [998702515].. [09-5084]

Appeal: 09-5084

Document: 39

Date Filed: 10/18/2011

Page: 1 of 4

ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-5084

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MOREY BERNAL CHAMPION,
Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.
Louise W. Flanagan,
Chief District Judge. (5:08-cr-00381-FL-1)

Submitted:

September 30, 2011

Before MOTZ and
Circuit Judge.

KING,

Circuit

Decided:

Judges,

and

October 18, 2011

HAMILTON,

Senior

Reversed and remanded by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.

Appeal: 09-5084

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Date Filed: 10/18/2011

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Morey Bernal Champion pleaded guilty to possession of
a

firearm

after
by

punishable

having
term

a

previously

of

been

imprisonment

convicted

exceeding

of

one

a

crime

year,

in

violation of 18 U.S.C. § 922(g)(1) (2006), conditioned on his
appeal of the district court’s denial of his motion to dismiss
the

indictment.

fifty-one

The

months

of

district

court

imprisonment.

sentenced

This

court

Champion
affirmed

to
his

conviction on appeal in reliance upon our decision in United
States

v.

Harp,

406

F.3d

242

(4th

Cir.

2005).

See

United

States v. Champion, 384 F. App’x 245 (2010) (unpublished).
subsequently
upon

the

granted

Supreme

Champion’s

Court’s

petition

decision

Holder, 130 S. Ct. 2577 (2010).

in

for

rehearing,

We

based

Carachuri-Rosendo

v.

Champion has now filed a motion

to vacate his conviction based on this court’s recent decision
in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc).

For

the

reasons

that

follow,

we

reverse

Champion’s

conviction.
Champion’s prior conviction for possession with intent
to deliver marijuana was a Class I felony under North Carolina
law.

Moreover, at the time of his conviction, his prior record

level was I.

Under North Carolina law, the maximum term of

imprisonment for a Class I felony with a record level of I and
no finding by the sentencing court of aggravating or mitigating
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Appeal: 09-5084

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Date Filed: 10/18/2011

factors is eight months.
(d) (2007).
of

Page: 4 of 4

See N.C. Gen. Stat. § 15A-1340.17(c),

Therefore, Champion could not have received a term

imprisonment

exceeding

twelve

months

for

his

prior

conviction.
In

Simmons,

we

determined

that

an

offense

is

not

punishable by a term exceeding one year of imprisonment if the
defendant could not have actually received more than one year of
imprisonment

for

that

offense,

history and other factors.

based

on

his

prior

criminal

As Champion could not have received

a term exceeding one year of imprisonment for his prior offense,
he did not have a qualifying predicate offense for a conviction
under

§

922(g)(1).

Therefore,

Champion

is

innocent

of

the

offense of conviction.
Accordingly, we reverse the judgment, deny Champion’s
motion as moot, and remand for further proceedings.
is directed to issue the mandate forthwith.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

The clerk

We dispense with

legal
before

contentions
the

court

are
and

argument would not aid the decisional process.

REVERSED AND REMANDED

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