US v. Carl McNeil, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:02-cr-00098-F-1,7:14-cv-00168-F Copies to all parties and the district court/agency. [999928033]. Mailed to: C McNeil. [16-6169]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6169

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARL RAY MCNEIL, JR.,
Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:02-cr-00098-FL-1; 7:14-cv-00168-F)

Submitted:

August 16, 2016

Decided:

September 13, 2016

Before NIEMEYER, MOTZ, and HARRIS, Circuit Judges.

Dismissed in part; vacated and remanded in part by unpublished per
curiam opinion.

Carl Ray McNeil, Jr., Appellant Pro Se. Jennifer P. May-Parker,
Assistant United States Attorney, Seth Morgan Wood, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Carl Ray McNeil, Jr., noted this appeal from the district
court’s order denying relief on his 28 U.S.C. § 2255 (2012) motion
and denying his motion to supplement his § 2255 motion. We granted
a certificate of appealability limited to the issue of whether the
district court erred when it denied as futile McNeil’s motion to
supplement,

which

convictions

for

raised

common

law

a

claim
robbery

that
no

his

longer

North

Carolina

qualified

as

a

predicate offenses under 18 U.S.C. § 924(e) (2012) following the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct.
2155 (2015).
After the district court’s order, we held that North Carolina
common law robbery “does not qualify categorically as a ‘violent
felony’ under [§ 924(e)(2)(B)].”

United States v. Gardner, ___

F.3d ___, ___, No. 14-4533, 2016 WL 2893881, at *5-7 (4th Cir. May
18, 2016).

Based on Johnson and Gardner, the Government has

conceded that McNeil would not be subject to the 15-year mandatory
minimum of § 924(e) if he were sentenced today.

Accordingly, we

vacate the district court’s order with respect to the denial of
McNeil’s motion to supplement his initial § 2255 filing and remand
for consideration, in light of Gardner, of McNeil’s challenge to
the counting of his common law robbery convictions.

We deny a

certificate of appealability as to McNeil’s remaining claims and
dismiss that portion of the appeal. We dispense with oral argument
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because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid the
decisional process.
DISMISSED IN PART;
VACATED AND REMANDED IN PART

3