US v. Bobby Hunt
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:09-cr-00034-FL-1,7:12-cv-00230-FL Copies to all parties and the district court/agency. [999657309].. [14-6703]
Appeal: 14-6703
Doc: 34
Filed: 09/10/2015
Pg: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6703
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BOBBY RAY HUNT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:09-cr-00034-FL-1; 7:12-cv-00230-FL)
Submitted:
August 7, 2015
Decided:
September 10, 2015
Before SHEDD and AGEE, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Halerie F. Mahan,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker,
Shalika
S.
Kotiya,
Assistant
United
States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 14-6703
Doc: 34
Filed: 09/10/2015
Pg: 2 of 5
PER CURIAM:
Bobby Ray Hunt pleaded guilty to possession of a firearm by
a felon, in violation of 18 U.S.C. § 922(g)(1) (2012).
The
district court initially found that Hunt qualified for enhanced
statutory
U.S.C.
penalties
§ 924(c)
under
(2012)
statutory
mandatory
Following
his
the
Armed
(“ACCA”),
minimum
unsuccessful
of
Career
and
180
appeal
of
Criminal
sentenced
months
the
of
ACCA
Act,
18
to
the
him
imprisonment.
finding,
Hunt
filed a 28 U.S.C. § 2255 (2012) motion, arguing that the ACCA
enhancement no longer applied following this court’s decision in
United
States
banc).
v.
Simmons,
649
F.3d
237
(4th
Cir.
2011)
(en
The district court concluded that Simmons did not apply
to the ACCA determination and that, in any event, Hunt was still
an armed career criminal following Simmons.
The court, however,
granted Hunt a certificate of appealability and Hunt appealed.
While
States v.
Hunt’s
Newbold,
June 30, 2015).
appeal
___
was
F.3d
pending,
___,
2015
WL
we
decided
3960906
United
(4th
Cir.
In Newbold, we concluded that Simmons applies
to the determination of whether a prior offense is predicate
under the ACCA and that such a claim may be raised in a § 2255
proceeding.
Id. at *3-*5.
Based on this decision, we vacate
the district court’s order and remand for reconsideration.
“In
reviewing
the
district
court's
determination
that
[Hunt] is an armed career criminal, we review factual findings
2
Appeal: 14-6703
for
Doc: 34
clear
States v.
Filed: 09/10/2015
error
Davis,
and
689
legal
F.3d
Pg: 3 of 5
conclusions
349,
355
de
(4th
novo.”
Cir.
United
2012).
“The
Government bears the burden of proving by a preponderance of the
evidence that a defendant committed a predicate [serious drug
offense]—the same standard that applies to any other sentencing
factor.”
United States. v. McDowell, 745 F.3d 115, 120 (4th
Cir. 2014), cert. denied, 135 S. Ct. 942 (2015).
Under the
ACCA, a defendant convicted of violating § 922(g) is subject to
a statutory minimum sentence of 15 years of imprisonment if he
has
sustained
three
prior
convictions
felonies or serious drug offenses.
for
either
violent
18 U.S.C. § 924(e).
A
serious drug offense is defined, in part, as a state offense
involving manufacturing, distributing, or possessing with intent
to distribute a controlled substance, “for which a maximum term
of imprisonment of ten years or more is prescribed by law.”
18
U.S.C. § 924(e)(2)(A)(ii).
In the proceedings below, the district court concluded that
Hunt’s
prior
uninhabited
North
house
and
Carolina
1988
convictions
convictions
for
for
burning
an
counts
of
two
possession with intent to deliver marijuana qualified as ACCA
predicates, and that Hunt’s 1981 convictions for possession with
intent to deliver and delivery of controlled substances did not
so qualify.
Hunt does not challenge these findings.
The court
also determined that Hunt’s 1987 convictions for possession with
3
Appeal: 14-6703
Doc: 34
Filed: 09/10/2015
Pg: 4 of 5
intent to deliver and delivery of controlled substances were
serious drug offenses under the ACCA, and Hunt argues on appeal
that this finding was error.
In
Newbold,
we
considered
whether
a
maximum
term
of
10
years of imprisonment was prescribed for Newbold’s 1984 North
Carolina
conviction
for
controlled substance.
possession
with
intent
to
2015 WL 3960906, at *5-*7.
deliver
a
Based on the
sentencing court’s failure to articulate aggravating factors to
expose Newbold to a sentence above the three-year presumptive
term up to the statutory maximum term of 10 years, and the
failure of the judgment to specify whether the sentencing court
actually imposed a sentence above that three-year presumptive
term, we concluded that there was no evidence in the record to
support
the
conclusion
that
the
offense
punishable by 10 years of imprisonment.
determination,
we
conclude
that
the
Id.
of
conviction
was
In light of this
district
court
should
reconsider its determinations that Hunt’s 1981 convictions were
not serious drug offenses under the ACCA and that Hunt’s 1987
convictions were serious drug offenses.
Accordingly,
we
vacate
the
district
court’s
order
and
remand with instructions to reconsider these issues in light of
Newbold.
legal
We dispense with oral argument because the facts and
contentions
are
adequately
4
presented
in
the
materials
Appeal: 14-6703
Doc: 34
Filed: 09/10/2015
Pg: 5 of 5
before this court and argument would not aid in the decisional
process.
VACATED AND REMANDED
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?