The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4017
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CLAYTON T. BROWN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:10-cr-00164-WO-1)
Submitted: October 19, 2011 Decided: November 3, 2011
Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Reversed and remanded by unpublished per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Michael Francis Joseph, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Clayton T. Brown, Jr., was convicted following his
guilty plea to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (2006). At sentencing, Brown
argued that his prior North Carolina breaking and entering
conviction did not qualify as a felony crime of violence for the
purposes of applying U.S. Sentencing Guidelines Manual (“USSG”)
§ 2K2.1(a)(4)(A) (2010), because he received a sentence that did
not exceed twelve months’ imprisonment. The district court
overruled the objection, relying on United States v. Harp, 406
F.3d 242 (4th Cir. 2005), and sentenced Brown to forty-four
months’ imprisonment. Brown timely appealed.
In his opening brief, Brown reasserts his argument
that his North Carolina breaking and entering conviction was not
punishable by imprisonment for a term exceeding one year and,
thus, that the conviction could not serve as the necessary
predicate for the § 2K2.1(a)(4)(A) enhancement. During the
pendency of the appeal, this court overruled Harp in United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). In
response to the Simmons decision, and prior to the completion of
briefing, the parties jointly moved this court to remand Brown’s
case “to the District Court for resentencing or other
disposition under . . . Simmons.” For the following reasons, we
broadly construe the language of the parties’ joint motion to
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reach the Simmons error underlying Brown’s conviction, reverse
the district court’s judgment, remand this case to the district
court, and deny the parties’ joint motion for resentencing as
moot.
Because Brown did not challenge the validity of his
guilty plea in the district court, our review is for plain
error. See United States v. Massenberg, 564 F.3d 337, 342 (4th
Cir. 2009) (issue not raised below is reviewed for plain error).
In order to satisfy the plain error standard, Brown must show:
(1) an error was made; (2) the error is plain; and (3) the error
affects substantial rights. United States v. Olano, 507 U.S.
725, 732 (1993).
In view of our holding in Simmons, we conclude that
Brown could not have been imprisoned for a term exceeding one
year for his prior breaking and entering conviction. See N.C.
Gen. Stat. §§ 15A-1340.16 to 15A-1340.17(c)-(d) (2009). Brown’s
prior North Carolina conviction for breaking and entering was a
Class H felony, and Brown was sentenced in the mitigated range
to a minimum of four-to-five months. An offender sentenced to a
minimum sentence of five months can serve a maximum of only six
months in custody. N.C. Gen. Stat. § 15A-1340.17(d).
Because his prior conviction was not a felony, Brown
can meet his burden to establish each of the plain error
requirements. At the time of Brown’s guilty plea, a Simmons
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challenge to Brown’s predicate felony for the purposes of his
§ 922(g)(1) conviction would have been foreclosed by Harp.
However, this court has now overruled Harp. Because plain error
exists “‘where the law at the time of trial was settled and
clearly contrary to the law at the time of appeal,’” Brown can
establish the error is plain. United States v. Hughes, 401 F.3d
540, 547 (4th Cir. 2005) (quoting Johnson v. United States, 520
U.S. 461, 468 (1997)). Moreover, because the error goes to the
validity of his conviction, Brown can establish the error
affects his substantial rights, and we exercise our discretion
to notice the error. See Olano, 507 U.S. at 732.
Accordingly, we reverse the district court’s judgment,
remand this case to the district court for further proceedings,
and deny the parties’ joint motion as moot. The clerk shall
issue the mandate forthwith. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
REVERSED AND REMANDED
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