US v. Jason McGaha

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--terminating Motion to remand case for limited purpose [998673470-2] Originating case number: 7:09-cr-00131-D-2. Copies to all parties and the district court/agency. [998700315]. [10-5328]

Appeal: 10-5328

Document: 37

Date Filed: 10/14/2011

Page: 1 of 5

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5328

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON ROBERT MCGAHA,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever, III,
Chief District Judge. (7:09-cr-00131-D-2)

Submitted:

September 28, 2011

Decided:

October 14, 2011

Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Richard Croutharmel, Raleigh, North Carolina, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 10/14/2011

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PER CURIUM:
Pursuant to a plea agreement, Jason Robert McGaha pled
guilty to possession of a firearm by a convicted felon, and
aiding and abetting, in violation of 18 U.S.C. §§ 922(g)(1),
924(e), 2 (2006).

The district court designated McGaha an armed

career criminal, based on several North Carolina state felony
breaking and entering convictions, as well as a North Carolina
state felony conviction for eluding arrest with a motor vehicle
with two aggravating factors, and sentenced him to 192 months’
imprisonment.

McGaha timely appealed.

McGaha’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), finding no meritorious grounds
for appeal, but arguing that McGaha’s prior state convictions
were not punishable by more than a year in prison and therefore
he was improperly designated an armed career criminal. 1
subsequently

filed

an

unopposed

motion

to

McGaha

remand

for

resentencing in light of United States v. Simmons, ___ F.3d ___,
2011 WL 3607266 (4th Cir. Aug. 17, 2011) (No. 08-4475).

For the

reasons that follow, we vacate the criminal judgment, grant the
motion to remand, and remand the case to the district court for

1

Although advised of his right to do so, McGaha did not
file a pro se supplemental brief.

2

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reconsideration of McGaha’s conviction and sentence in light of
Simmons.
To
punishment

qualify

under

for

the

the

Armed

fifteen

Career

year

mandatory

Criminal

Act

minimum

(“ACCA”),

18

U.S.C. § 924(e), a felon in possession of a firearm must have
three prior convictions for a violent felony or serious drug
offense

or

both,

committed

on

occasions

different

from

one

another.

A qualifying offense must be punishable by a term

exceeding

one

Carolina’s

year.

18

structured

U.S.C.

§ 924(e)(2)(B).

sentencing

North

sentences

scheme,

Under

are

calculated based on an offender’s criminal history and whether
his

offense

falls

aggravated range.

within

the

mitigated,

presumptive,

or

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

Nexis 2009).
At

the

time

of

McGaha’s

conviction

and

sentencing,

existing precedent established that a prior conviction for a
violent
prison

felony
term

or

serious

exceeding

drug

one

offense

year

if

was

the

punishable

maximum

by

a

aggravated

sentence that could be imposed for that crime upon a defendant
with the worst possible criminal history was more than a year.
United

States

v.

Harp,

406

F.3d

242,

246

(4th

Cir.

2005).

Recently, however, we overruled Harp with our en banc decision
in United States v. Simmons, 2011 WL 3607266 (4th Cir. Aug. 17,
2011) (No. 08-4475), where we held that a North Carolina offense
3

Appeal: 10-5328

may

Document: 37

not

be

Date Filed: 10/14/2011

classified

as

a

Page: 4 of 5

felony

based

upon

the

maximum

aggravated sentence that could be imposed upon a repeat offender
if

the

individual

defendant

was

not

eligible

for

such

a

Simmons, 2011 WL 3607266, at *3.

sentence.

McGaha

did

not

receive

a

sentence

exceeding

twelve

months for any of his offenses and it is unclear from the record
on

appeal

whether

any

of

his

convictions

sentence exceeding twelve months. 2

exposed

him

to

a

Thus, it is unclear from the

record whether McGaha was properly designated an armed career
criminal or even whether he is guilty of the offense to which he
pled

guilty.

Accordingly,

we

vacate

the

criminal

judgment,

grant McGaha’s unopposed motion to remand for resentencing, and
remand to the district court for reconsideration of McGaha’s
conviction and sentence in light of Simmons. 3
This
writing,

of

court

the

requires

right

to

that

petition

United States for further review.

counsel
the

inform

Supreme

McGaha,

Court

of

in
the

If McGaha requests that a

petition be filed, but counsel believes that such a petition

2

To the extent that McGaha was convicted of aiding and
abetting a § 922(g) offense, it is unclear from the record on
appeal whether McGaha’s co-defendant qualified as a felon for
purposes of § 922(g).
3

In accordance with Anders, we have reviewed the entire
record in this case and have found no other meritorious issues
for appeal.

4

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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 McGaha.

We dispense

with oral argument because the facts and legal contentions are
adequately

presented

in

the

materials

before

this

court

and

argument would not aid the decisional process.

VACATED AND REMANDED

5