United States of America v. Jeremy Scott Lemmond

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5243
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JEREMY SCOTT LEMMOND,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00192-RJC-1)
Submitted: September 13, 2011 Decided: September 15, 2011
Before AGEE, DAVIS, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ross H. Richardson,
Assistant Federal Defender, Charlotte, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, Laura L.
Ferris, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jeremy Scott Lemmond appeals his 188-month sentence
following his guilty plea to one count of armed bank robbery, in
violation of 18 U.S.C. § 2113(a), (d) (2006). On appeal,
Lemmond argues that the district court erred in sentencing him
as a career offender under U.S. Sentencing Guidelines Manual
(“USSG”) § 4B1.1 (2010) because neither of the two prior
convictions on which that classification was based—two North
Carolina state convictions for larceny from the person, in
violation of N.C. Gen. Stat. § 14-72(b)(1) (2009)—were
punishable by imprisonment for a term exceeding one year. We
vacate and remand for resentencing.
A defendant is properly designated a career offender
if: (1) he was at least eighteen years old at the time he
committed the instant offense; (2) the instant offense is a
felony crime of violence or controlled substance offense; and
(3) he “has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.”
USSG § 4B1.1(a). An offense does not qualify as a “crime of
violence” or a “controlled substance offense” unless it is
“punishable by imprisonment for a term exceeding one year.”
USSG § 4B1.2(a).
Lemmond argues that his prior crimes were each
punishable by no more than one year of imprisonment. See N.C.

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Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting forth minimum
and maximum sentences applicable under North Carolina’s
sentencing scheme). When Lemmond 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 United States v. Simmons, ___ F.3d ___, No. 08-4475,
2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en banc), in which the
defendant raised a similar argument under the Controlled
Substances Act. In light of Simmons, we vacate the district
court’s judgment and remand to the district court for
resentencing.*
VACATED AND REMANDED
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.
* The Government does not dispute Lemmond’s assertion that
his prior North Carolina state convictions are Class H offenses.
The record on appeal, however, does not disclose Lemmond’s prior
record level or whether the state sentencing court made findings
of mitigating or aggravating circumstances. See Simmons, 2011
WL 3607266, at *5 (stating that, for prior North Carolina
convictions where no aggravating or mitigating circumstances are
present, test is whether defendant could receive more than one
year in prison based upon his offense class and prior record
level). We express no opinion as to whether Lemmond’s prior
state convictions qualify as career offender predicates and
leave this determination to the district court on remand.

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