UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-5320

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAWAUN JERMEL SMITH,

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-00019-WO-1)

Submitted: October 14, 2011 Decided: January 4, 2012

Before KING, GREGORY, and DAVIS, Circuit Judges.

Reversed and remanded by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, William C. Ingram, 

First Assistant Federal Public Defender, Greensboro, North 

Carolina, for Appellant. Michael A. DeFranco, Assistant United 

States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Jawaun Jermel Smith pled guilty to possessing a 

firearm after having been convicted of a crime punishable by 

imprisonment for a term exceeding one year in violation of 18 

U.S.C. § 922(g)(1) (2006), but reserved his right to appeal the 

issue of whether his prior conviction was punishable by more 

than one year of imprisonment. The offense in question was a

prior North Carolina conviction for possession with intent to 

sell and deliver cocaine. A defendant with a criminal record 

similar to Smith’s faced a maximum possible sentence of less 

than one year under North Carolina law for this offense. Smith

appealed, arguing that his prior state conviction was not 

“punishable by imprisonment for a term exceeding one year.” The 

parties have filed a joint motion to vacate Smith’s conviction. 

We recently held that, when deciding whether a North 

Carolina conviction is a predicate offense for sentencing 

enhancement purposes, the Controlled Substance Act’s inclusion 

of offenses “punishable by imprisonment for more than one year” 

refers to the maximum sentence that the defendant in question 

could have received, not the sentence that could have been 

imposed on a defendant with a more severe criminal history or 

one subject to an aggravated sentence. United States v. 

Simmons, 649 F.3d 237, 241 (4th Cir. 2011) (en banc). The 

reasoning in Simmons applies with equal force to predicate 
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convictions as defined in 18 U.S.C. § 922(g)(1). See CarachuriRosendo v. Holder, 130 S. Ct. 2577, 2586-87 (2010) 

(distinguishing between “conduct punishable as a felony” and 

conviction of a felony offense); Simmons

Accordingly, we reverse Smith’s conviction and remand 

for further proceedings. We deny the motion to vacate as moot. 

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. 

, 649 F.3d at 247

(concluding that the North Carolina Structured Sentencing Act 

“creates separate offenses that in turn yield separate maximum 

punishments”). Thus, because Smith’s underlying state 

conviction was not punishable by a term exceeding one year, 

Smith’s conduct that formed the basis for his federal conviction 

— possessing a firearm — did not violate § 922(g). 

REVERSED AND REMANDED