United States v. Morey Champion, 4th Cir. (2011)
Uploaded by
Scribd Government DocsUnited States v. Morey Champion, 4th Cir. (2011)
Uploaded by
Scribd Government DocsON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5084
UNITED STATES OF AMERICA,
Plaintiff Appellee,
v.
MOREY BERNAL CHAMPION,
Defendant Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.
Louise W. Flanagan,
Chief District Judge. (5:08-cr-00381-FL-1)
Submitted:
September 30, 2011
Before MOTZ and
Circuit Judge.
KING,
Circuit
Decided:
Judges,
and
October 18, 2011
HAMILTON,
Senior
Reversed and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Eric J. Brignac, Research and
Writing Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Anne M. Hayes, Jennifer P. May-Parker,
Assistant United States Attorneys, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Morey Bernal Champion pleaded guilty to possession of
a
firearm
punishable
after
having
by
term
previously
of
been
imprisonment
convicted
exceeding
of
one
crime
year,
in
violation of 18 U.S.C. 922(g)(1) (2006), conditioned on his
appeal of the district courts denial of his motion to dismiss
the
indictment.
fifty-one
The
months
of
district
court
imprisonment.
sentenced
This
court
Champion
affirmed
to
his
conviction on appeal in reliance upon our decision in United
States
v.
Harp,
406
F.3d
242
(4th
Cir.
2005).
See
United
States v. Champion, 384 F. Appx 245 (2010) (unpublished).
subsequently
upon
the
granted
Supreme
Champions
Courts
petition
decision
Holder, 130 S. Ct. 2577 (2010).
in
for
rehearing,
We
based
Carachuri-Rosendo
v.
Champion has now filed a motion
to vacate his conviction based on this courts recent decision
in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc).
For
the
reasons
that
follow,
we
reverse
Champions
conviction.
Champions prior conviction for possession with intent
to deliver marijuana was a Class I felony under North Carolina
law.
Moreover, at the time of his conviction, his prior record
level was I.
Under North Carolina law, the maximum term of
imprisonment for a Class I felony with a record level of I and
no finding by the sentencing court of aggravating or mitigating
3
factors is eight months.
(d) (2007).
of
See N.C. Gen. Stat. 15A-1340.17(c),
Therefore, Champion could not have received a term
imprisonment
exceeding
twelve
months
for
his
prior
conviction.
In
Simmons,
we
determined
that
an
offense
is
not
punishable by a term exceeding one year of imprisonment if the
defendant could not have actually received more than one year of
imprisonment
for
that
offense,
history and other factors.
based
on
his
prior
criminal
As Champion could not have received
a term exceeding one year of imprisonment for his prior offense,
he did not have a qualifying predicate offense for a conviction
under
922(g)(1).
Therefore,
Champion
is
innocent
of
the
offense of conviction.
Accordingly, we reverse the judgment, deny Champions
motion as moot, and remand for further proceedings.
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
