US v. Reginald Ro

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00483-JAB-1 Copies to all parties and the district court/agency. [998688361].. [10-5167]

Appeal: 10-5167

Document: 19

Date Filed: 09/28/2011

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5167

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
REGINALD RENARD ROSS,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00483-JAB-1)

Submitted:

September 15, 2011

Decided:

September 28, 2011

Before GREGORY, SHEDD, and WYNN, Circuit Judges.

Reversed and remanded by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, Eric D. Placke,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Michael F.
Joseph, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 10-5167

Document: 19

Date Filed: 09/28/2011

Page: 2 of 3

PER CURIAM:
A jury convicted Reginald Renard Ross of possession of
a

firearm

by

a

convicted

felon,

§§ 922(g)(1), 924(a)(2) (2006).
court’s

judgment,

judgment

of

challenging

acquittal

on

in

violation

of

18

U.S.C.

He now appeals the district
the

the

denial

ground

of

that

his
his

motion
prior

for

North

Carolina convictions were not felonies inasmuch as they were not
“punishable for a term of imprisonment exceeding one year.”

In

light of our recent decision in United States v. Simmons, ___
F.3d ___, 2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en banc), we
reverse Ross’ conviction and remand for further proceedings.
This appeal turns on § 922(g)(1)’s prohibition of the
possession of a firearm by any person “who has been convicted in
any court of, a crime punishable by imprisonment for a term
exceeding one year.”

18 U.S.C. § 922(g)(1).

At the time of

Ross’ indictment and conviction, this court determined whether a
prior

conviction

qualified

as

a

felony

for

purposes

of

§ 922(g)(1) by considering “the maximum aggravated sentence that
could be imposed for that crime upon a defendant with the worst
possible criminal history.”

United States v. Harp, 406 F.3d

242,

While

246

(4th

Cir.

2005).

Ross’

appeal

was

pending,

however, Harp was overruled by the en banc decision in Simmons.
See Simmons, 2011 WL 3607266, at *3.

Simmons held that a prior

North Carolina offense was punishable for a term exceeding one
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year only if the particular defendant before the court had been
eligible

for

such

a

sentence

under

the

applicable

statutory

scheme, taking into account his criminal history and the nature
of his offense.

Id., at *8; see also N.C. Gen. Stat. § 15A-

1340.17(c)-(d) (2009) (setting forth North Carolina’s structured
sentencing scheme).

We agree with Ross that, on the record

before us, he was not eligible on his North Carolina convictions
to receive a sentence exceeding one year.
Because Simmons directs the conclusion that Ross was
never convicted of a crime punishable by more than one year of
incarceration, he cannot be convicted as a felon in possession
of a firearm under § 922(g)(1).
Government

or

the

district

We of course do not fault the

court

for

their

reliance

upon

unambiguous circuit authority at the time of Ross’ indictment
and conviction.

Accordingly, we reverse Ross’ conviction and

remand for further proceedings.
the mandate forthwith.

The Clerk is directed to issue

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.
REVERSED AND REMANDED

3