US v. Michael Ohangbon

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--terminating Motion to remand case [998797405-2] Originating case number: 1:09-cr-00346-TDS-1 Copies to all parties and the district court/agency. [998833724].. [11-4933]

Appeal: 11-4933

Document: 34

Date Filed: 04/17/2012

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4933

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL UYIOGHOSA OHANGBON,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:09-cr-00346-TDS-1)

Submitted:

March 30, 2012

Decided:

April 17, 2012

Before WILKINSON, DAVIS, and WYNN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

David Bruce Freedman, CRUMPLER, FREEDMAN, PARKER & WITT,
Winston-Salem, North Carolina, for Appellant.
Randall Stuart
Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 11-4933

Document: 34

Date Filed: 04/17/2012

Page: 2 of 3

PER CURIAM:
Michael Uyioghosa Ohangbon pleaded guilty, pursuant to
a

plea

agreement,

to

possession

with

intent

to

distribute

marijuana, in violation of 21 U.S.C. § 841(a)(1) (2006), and
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2006).
which

we

Ohangbon

affirmed
was

imprisonment.

the

Following a successful appeal, in

convictions

resentenced

to

but

vacated

concurrent

the

sentence,

thirty-month

terms

of

In this appeal, Ohangbon argues that his § 922(g)

conviction is no longer valid in light of our decision in United
States v. Simmons, 649 F.3d 237, 241 (4th Cir. 2011) (en banc).
In Simmons, we overruled United States v. Harp, 406
F.3d 242 (4th Cir. 2005), and held that a North Carolina state
conviction may not be classified as punishable by a term of
imprisonment exceeding one year based on the maximum aggravated
sentence

that

individual

could

defendant

be
was

imposed
not

on

a

repeat

eligible

for

offender
such

a

if

the

sentence.

Simmons, 649 F.3d at 241, 243-48.
Ohangbon’s
North

Carolina

§ 922(g)

conviction

conviction
for

possession

distribute marijuana, a class I felony.
§§ 90-95(b)(2), 90-94(1) (2011).

was

supported
with

by

his

intent

to

See N.C. Gen. Stat.

The record does not include

the state court judgment and it is not clear what Ohangbon’s
prior record level was at his state sentencing.
2

However, the

Appeal: 11-4933

Document: 34

Date Filed: 04/17/2012

Page: 3 of 3

record does reflect that Ohangbon was ultimately sentenced to a
suspended

sentence

of

six

to

eight

months’

imprisonment.

Accordingly, it appears that he could not have been sentenced to
imprisonment for a term exceeding one year because even if he
faced a minimum sentence of eight months, Ohangbon was exposed
to a maximum term of imprisonment of no more than ten months.
N.C. Gen. Stat. § 15A-1340.17 (d) (2003).
appears

that

Ohangbon

did

not

have

Applying Simmons, it

the

requisite

predicate

offense to be convicted of being a felon in possession of a
firearm.

We remand to the district court for the appropriate

determination regarding this prior conviction.
Accordingly, we vacate Ohangbon’s § 922(g) conviction
and

his

dispense

sentence
with

and

oral

remand

argument

for

further

because

proceedings.

the

facts

and

We
legal

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

VACATED AND REMANDED

3