US v. Phillip Garrison

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00072-WO-1 Copies to all parties and the district court/agency. [998693096].. [10-4028]

Appeal: 10-4028

Document: 19

Date Filed: 10/04/2011

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4028

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILLIP RYAN GARRISON,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., District Judge. (1:08-cr-00072-WO-1)

Submitted:

September 29, 2011

Decided:

October 4, 2011

Before KING, GREGORY, and DUNCAN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished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.
Anna Mills Wagoner, United States
Attorney, Anand P. Ramaswamy, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 10-4028

Document: 19

Date Filed: 10/04/2011

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PER CURIAM:
Phillip

Ryan

Garrison

pled

guilty,

pursuant

to

a

written plea agreement, to possession of a firearm by a felon,
in violation of 18 U.S.C. § 922(g)(1) (2006).
to 100 months’ imprisonment.

He was sentenced

On appeal, Garrison contends that

his base offense level was incorrectly calculated because he did
not

have

two

prior

felony

convictions

of

either

a

crime

of

violence or a controlled substance offense, as required by U.S.
Sentencing

Guidelines

Manual

(USSG)

§ 2K2.1(a)(2)

(2008).

Garrison concedes that his 2004 North Carolina conviction for
common

law

robbery

is

a

qualifying

predicate

conviction.

However, he asserts that his 2005 North Carolina convictions for
two counts of attempted common law robbery were not punishable
by a term of imprisonment exceeding one year.
cmt.

n.1

(defining

“felony

“crime of violence”).
Structured

Sentencing

conviction”);

See USSG § 2K2.1

§ 4B1.2(a)

(defining

He reasons that, under the North Carolina
Act,

his

maximum

sentence

was

twelve

months because no aggravating factors were either admitted or
proven by the State.

See N.C. Gen. Stat. § 15A-1340.17(c)-(d)

(2007) (applicable to offenses committed on or after Dec. 1,
1995, and on or before Nov. 30, 2009). ∗

∗

The North Carolina legislature subsequently amended the
statute with regard to offenses committed on or after December
1, 2009, see Act of Aug. 28, 2009, 2009 N.C. Sess. Laws 555,
(Continued)
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Appeal: 10-4028

Document: 19

Date Filed: 10/04/2011

When

raised

Garrison

this

Page: 3 of 3

argument

in

the

district

court, it was foreclosed by our decision in United States v.
Harp, 406 F.3d 242 (4th Cir. 2005).

Subsequently, however, we

overruled Harp with our en banc decision in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).

In view of

Simmons, we will likewise sustain Garrison’s objection.
Accordingly,

while

we

affirm

Garrison’s

conviction,

which is not challenged on appeal, we vacate his sentence and
remand to the district court for resentencing.

We dispense with

oral

contentions

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

the

court

are
and

argument would not aid in the decisional process.

AFFIRMED IN PART;
VACATED IN PART;
AND REMANDED

§§ 1-2, and offenses committed on or after December 1, 2011.
See Justice Reinvestment Act of 2011, 2011 N.C. Sess. Laws 192,
§ 2(e)-(f).

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