US v. Jeffrey Lewi
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying as moot Motion to remand case [998700536-2]. Originating case number: 7:09-cr-00088-BO-1. Copies to all parties and the district court/agency. [998744559]. [11-4375]
Appeal: 11-4375
Document: 26
Date Filed: 12/15/2011
Page: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4375
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JEFFREY WINSTON LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (7:09-cr-00088-BO-1)
Submitted:
November 30, 2011
Decided:
December 15, 2011
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
Stephen Clayton Gordon, Assistant Federal Public Defender,
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Unpublished opinions are not binding precedent in this circuit.
Appeal: 11-4375
Document: 26
Date Filed: 12/15/2011
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PER CURIAM:
Jeffrey
Winston
Lewis
entered
a
conditional
guilty
plea to being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1) (2006).
Lewis reserved his right to
appeal
prior
the
possession
issue
of
whether
with
intent
to
his
state
manufacture,
convictions
sell,
and
for
deliver
marijuana, in violation of N.C. Gen. Stat. § 90-95(a)(1) (2009),
and maintaining a dwelling for the purposes of using controlled
substances,
in
violation
of
N.C.
Gen.
Stat.
§ 90-108(a)(7)
(2009), were punishable by more than one year of imprisonment
and therefore constituted predicate felonies for the § 922(g)
conviction.
On consideration of Lewis’s unopposed motion to
vacate his federal conviction, we reverse.
The
judgments
for
the
state
court
convictions,
included in the record below in support of Lewis’s motion to
dismiss
the
indictment,
reveal
that
Lewis
faced
a
maximum
possible sentence of ten months for each of his prior North
Carolina
convictions.
At
the
time
that
the
district
court
accepted Lewis’s guilty plea, our decision in United States v.
Harp, 406 F.3d 242, 246 (4th Cir. 2005), dictated that a court,
when determining whether a prior conviction could be considered
as a felony, should “consider the maximum aggravated sentence
that could be imposed for that crime upon a defendant with the
worst
possible
criminal
history.”
2
Harp
has
since
been
Appeal: 11-4375
Document: 26
Date Filed: 12/15/2011
Page: 3 of 3
overturned by our decision in United States v. Simmons, 649 F.3d
237 (4th Cir. 2011) (en banc).
Simmons holds that a North
Carolina offense may not be classified as a felony based upon
the maximum aggravated sentence that could be imposed upon a
repeat
offender
if
the
defendant
before
actually eligible for such a sentence.
the
court
was
Id. at 241-46.
not
Because
Lewis was not subject to a sentence exceeding one year for these
predicate
convictions,
and
therefore
had
no
prior
felony
convictions, the conduct that formed the basis for his federal
conviction, possessing a firearm, did not violate § 922(g)(1).
Accordingly,
we
reverse
Lewis’s
conviction
and
remand
for
further proceedings. *
We deny Lewis’s motion to vacate as moot.
is directed to issue the mandate forthwith.
oral
argument
adequately
because
presented
in
the
the
facts
and
materials
The clerk
We dispense with
legal
before
contentions
the
court
are
and
argument would not aid the decisional process.
REVERSED AND REMANDED
*
We of course do not fault the Government or the district
court for reliance on, and application of, unambiguous circuit
authority at the time of Lewis’s indictment and conviction.
3
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