US v. Edward Gardner

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00177-NCT-1 Copies to all parties and the district court/agency. [998698203].. [10-4755]

Appeal: 10-4755

Document: 39

Date Filed: 10/12/2011

Page: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4755
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
EDWARD JORGE GARDNER,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge. (1:08-cr-00177-NCT-1)
Submitted:

September 29, 2011

Decided:

October 12, 2011

Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.
Affirmed in part, vacated in part and remanded by unpublished
per curiam opinion.
George E. Crump, III, Rockingham, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Robert A. J. Lang,
Assistant United States Attorney, Winston-Salem, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Edward Jorge Gardner pled guilty pursuant to a written
plea agreement to possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1) (2006), and was sentenced
to 360 months’ imprisonment.

At sentencing, Gardner’s counsel

objected to Gardner’s designation as an armed career criminal
under 18 U.S.C. § 924(e) (2006).
Gardner’s

prior

convictions

Counsel asserted that some of

could

not

count

as

predicate

felonies because, under the North Carolina structured sentencing
scheme, Gardner could not have received a sentence in excess of
one year based on his prior record level.
below

that

this

argument

was

foreclosed

Gardner conceded
by

this

court’s

then-authoritative decision in United States v. Harp, 406 F.3d
242

(4th

Cir.

2005),

but

he

argued

that

Harp

should

be

overruled.
On

appeal,

Gardner

again

challenges

the

district

court’s conclusion that he had four previous violent felonies.
Section 924(e) subjects a violator of section 922(g) to enhanced
penalties if he has “three previous convictions by any court
. . . for a violent felony or a serious drug offense, or both.”
18 U.S.C. § 924(e)(1).

One of the statutory requirements for a

“violent felony” is that it be “punishable by imprisonment for a
term

exceeding

Gardner

raised

one
this

year.”
argument

18
in
2

U.S.C.
the

§ 924(e)(2)(B).
district

court,

When
it

was

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Date Filed: 10/12/2011

foreclosed by Harp.

Page: 3 of 4

406 F.3d at 246 (holding that “to determine

whether a conviction is for a crime punishable by a prison term
exceeding

one

year”

the

court

should

consider

“the

maximum

aggravated sentence that could be imposed for that crime upon a
defendant with the worst possible criminal history” and not the
maximum sentence that could be imposed on the actual defendant
being sentenced).

Subsequently, however, we overruled Harp with

our en banc decision in United States v. Simmons, 649 F.3d 237
(4th

Cir.

2011)

hypothetical

banc)

aggravating

inappropriate
constitutes

(en

when
a

(holding

factors

determining

felony).

Our

and

that

consideration

criminal

history

whether

a

prior

Simmons

decision

of
is

offense
requires

reconsideration of Gardner’s sentence.
We

affirm

Gardner’s

conviction,

which

he

does

not

challenge on appeal, but we vacate his sentence and remand for
resentencing in light of Simmons.1

Because we cannot determine

from the current record whether, in light of Simmons, some or
all

of

Gardner’s

prior

convictions

would

constitute

violent

felonies under § 924(e), we express no opinion on that issue and

1

We of course do not fault the Government or the district
court for application of unambiguous circuit authority at the
time of Gardner’s initial sentencing.

3

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leave that determination for the district court on remand.2

We

decline

as

their

to

address

resolution

resentencing.

Gardner’s

may

be

remaining

rendered

claims

unnecessary

on
by

appeal,

Gardner’s

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 in the decisional
process.
AFFIRMED IN PART,
VACATED IN PART, AND REMANDED

2

On resentencing, the district court should also consider
whether Gardner has the requisite predicate felony convictions
needed to calculate his base offense level under U.S. Sentencing
Guidelines Manual § 2K2.1(a)(2).

4