United States of America v. Tywon Orlando Walker

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4111
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYWON ORLANDO WALKER,
Defendant – Appellant,
No. 10-4560
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRANDON LEE HAWKINS,
Defendant – Appellant,
No. 10-4590
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEON DENARD COVINGTON,

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Defendant – Appellant,
No. 10-4607
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NATHANIEL ANTHONY BROWN,
Defendant – Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge; N. Carlton Tilley, Jr., Senior District
Judge; Thomas David Schroeder, District Judge. (1:09-cr-00144-
WO-1; 1:09-cr-00304-NCT-1; 1:09-cr-00195-TDS-1; 1:09-cr-00270-
TDS-1)
Submitted: August 22, 2011 Decided: September 19, 2011
Before WILKINSON, AGEE, and KEENAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
William C. Ingram, Thomas N. Cochran, Assistant Federal Public
Defenders, Greensboro, North Carolina, for Appellants. John W.
Stone, Jr., Acting United States Attorney, Robert A. J. Lang,
Assistant United States Attorney, Winston-Salem, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In these consolidated appeals, Tywon Orlando Walker,
Brandon Lee Hawkins, Keon Denard Covington, and Nathaniel
Anthony Brown appeal their convictions following guilty pleas1 to
possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1), 924 (2006). On appeal, Appellants argue
that the North Carolina convictions forming the basis for their
federal convictions were not felonies, and therefore they were
not convicted felons. We agree; accordingly, we vacate their
convictions.
We review de novo a district court’s denial of a
motion to dismiss the indictment where denial depends on a
question of law. See United States v. Hatcher, 560 F.3d 222,
224 (4th Cir. 2009). Section 922(g)(1) prohibits the possession
of a firearm by any person “who has been convicted in any court
of, a crime punishable by imprisonment for a term exceeding one
year.” 18 U.S.C. § 922(g)(1).
Appellants were charged and convicted consistent with
our decision in United States v. Harp, 406 F.3d 242, 246-47 (4th
1 Hawkins, Covington, and Brown entered conditional guilty
pleas, preserving their right to appeal the district court’s
denials of their motions to dismiss their indictments. Walker
raised the issue in the district court after his guilty plea but
before sentencing, and we conclude he has adequately preserved
the issue.

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Cir. 2005). We recently overruled Harp with our en banc
decision in United States v. Simmons, No. 08-4475, 2011 WL
3607266, at *3 (4th Cir. Aug. 17, 2011), holding 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 defendant was not eligible for such a
sentence. Id. at 8. Appellants were not eligible for sentences
exceeding one year. Thus, under Simmons, their North Carolina
convictions were not for crimes punishable by more than one
year’s imprisonment and could not support their federal
indictments.2
Accordingly, we vacate Appellants’ convictions and
remand for further proceedings. 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.
VACATED AND REMANDED
2 We of course do not fault the Government or the district
court for reliance upon, and application of, unambiguous circuit
authority at the time of Appellants’ indictment and convictions.

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