United States of America v. Glenn Elwood Hiatt, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5146
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GLENN ELWOOD HIATT, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00017-NCT-1)
Submitted: September 19, 2011 Decided: September 29, 2011
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Todd A. Smith, LAW FIRM OF TODD A. SMITH, Graham, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Anand P. Ramaswamy, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIUM:
Pursuant to a plea agreement, Glenn Elwood Hiatt, Jr.
pled guilty to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2006). The
district court designated Hiatt an armed career criminal, based
on several North Carolina state felony breaking and entering
convictions, and sentenced him to 188 months’ imprisonment.
Hiatt appeals, arguing that his prior state convictions were not
punishable by more than a year in prison and therefore he was
improperly designated an armed career criminal.
To qualify for the fifteen year mandatory minimum
punishment under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e), a felon in possession of a firearm must have
three prior convictions for a violent felony or serious drug
offense or both, committed on occasions different from one
another. A qualifying offense must be punishable by a term
exceeding one year. 18 U.S.C. § 924(e)(2)(B). Under North
Carolina’s structured sentencing scheme, sentences are
calculated based on an offender’s criminal history and whether
his offense falls within the mitigated, presumptive, or
aggravated range. N.C. Gen. Stat. § 15A-1340.17(c)-(d) (Lexis
Nexis 2009).
At the time of Hiatt’s conviction and sentencing,
existing precedent established that a prior conviction for a

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violent felony or serious drug offense was punishable by a
prison term exceeding one year if the maximum aggravated
sentence that would be imposed for that crime upon a defendant
with the worst possible criminal history was more than a year.
United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005).
Recently, however, we overruled Harp with our en banc decision
in United States v. Simmons, 2011 WL 3607266 (4th Cir. Aug. 17,
2011) (No. 08-4475), where we held that a North Carolina offense
may not be classified as a felony based upon the maximum
aggravated sentence that could be imposed upon a repeat offender
if the individual defendant was not eligible for such a
sentence. Simmons
Hiatt did not receive a sentence exceeding twelve
months on any of his North Carolina convictions, and it is
unclear from the record on appeal whether any of his convictions
exposed him to a sentence exceeding twelve months. Accordingly,
we vacate Hiatt’s criminal judgment and remand to the district
court to reconsider Hiatt’s conviction and sentence in light of
, 2011 WL 3607266, at *3.
Simmons. Hiatt’s motion to file a pro se supplemental brief is
denied. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
VACATED AND REMANDED

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