United States of America v. Natwoine Austin

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4489
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NATWOINE AUSTIN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:10-cr-00099-FDW-1)
Submitted: September 29, 2011 Decided: October 4, 2011
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
Matthew Segal, Federal Defender, Asheville, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Natwoine Austin was convicted following his
conditional guilty plea to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006).
The district court sentenced Austin to twenty-one months’
imprisonment. Austin reserved the right to appeal the district
court’s determination that his prior North Carolina state
conviction for possession of a schedule I controlled substance
qualified as a felony for the purpose of adjudging him guilty
under § 922(g)(1). Austin timely appealed. Prior to submitting
an opening brief, Austin moved to vacate his conviction and to
remand the case to the district court, arguing that his North
Carolina 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 § 922(g)(1) charge. In
light of our decision in United States v. Simmons, 649 F.3d 237,
2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en banc), we reverse
and remand.
Under 18 U.S.C. § 922(g)(1), it is unlawful for any
person convicted of a crime punishable by imprisonment for a
term exceeding one year to possess a firearm. Austin’s prior
North Carolina state conviction was not punishable by
imprisonment for a term exceeding one year. See N.C. Gen. Stat.
§ 15A-1340.17(c)-(d) (2009) (setting out minimum and maximum

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sentences applicable under North Carolina’s structured
sentencing scheme). When Austin raised this argument in the
district court, it was foreclosed by our decision in United
States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005).
Subsequently, however, we overruled Harp with our en banc
decision in Simmons, in which we sustained a similar argument in
favor of the defendant. In view of our holding in Simmons, we
reverse Austin’s conviction, deny as moot his motion to vacate,
and remand the case to the district court for further
proceedings.*
REVERSED AND REMANDED
The clerk is directed to 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.
* We of course do not fault the Government or the district
court for their reliance upon, and application of, unambiguous
circuit authority at the time of Austin’s indictment and
conviction.

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