US v. Anthony Rhode

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cr-00159-WO-1 Copies to all parties and the district court/agency. [998677187]. Mailed to: Rand. [11-4096]

Appeal: 11-4096

Document: 26

Date Filed: 09/14/2011

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4096

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY THOMAS RHODES,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., District Judge. (1:10-cr-00159-WO-1)

Submitted:

September 12, 2011

Decided:

September 14, 2011

Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Charles H. Harp, II, CHARLES H. HARP, II, P.C., Lexington, 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Unpublished opinions are not binding precedent in this circuit.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: 11-4096

Document: 26

Date Filed: 09/14/2011

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PER CURIAM:
Anthony Thomas Rhodes appeals his 180 month sentence
for

being

a

convicted

felon

in

possession

of

a

firearm

in

violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2006).

We find

that

entering

Rhodes’s

conviction

was

1999
not

North

Carolina

punishable

by

a

breaking
term

and

exceeding

one

year;

thus, Rhodes lacks the three predicate violent felony or serious
drug convictions necessary to trigger the fifteen year mandatory
minimum sentence prescribed by 18 U.S.C. § 924(e).
Under North Carolina’s structured sentencing regime,
Rhodes could not have received a custodial sentence of more than
one

year

for

his

criminal history.

breaking

and

entering

conviction

given

his

Therefore, this conviction does not qualify

as a “violent felony” for purposes of 18 U.S.C. § 924(e)(2)(B).
When the district court fixed his sentence, this argument 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, __ F.3d
__,

2011

WL

Pursuant to

3607266

(4th

Cir.

Aug.

17,

2011)

(en

banc).

the dictates of Simmons, we find merit in Rhodes’s

appeal.
Accordingly, the district court’s judgment is affirmed
as to the conviction, vacated as to the sentence, and the case
is remanded for resentencing.

We dispense with oral argument
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Date Filed: 09/14/2011

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because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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