UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4359

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ANTOINE WILSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Wilmington. James C. Fox, Senior

District Judge. (5:10-cr-00213-F-2)

Submitted: September 22, 2011 Decided: October 11, 2011

Before MOTZ, SHEDD, and KEENAN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Lewis A. Thompson, III, BANZET, THOMPSON & STYERS, PLLC, 

Warrenton, North Carolina, for Appellant. Jennifer P. 

May-Parker, Assistant United States Attorney, Raleigh, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Antoine Wilson was charged with being in possession of 

a firearm having been previously convicted of a crime punishable 

by imprisonment for a term exceeding one year. Wilson filed a 

motion to dismiss the charges against him in light of the 

Supreme Court’s decision in Carachuri-Rosendo v. Holder

Following the issuance of this court’s opinion in 

, 130 S. 

Ct. 2577 (2010) (“We hold that when a defendant has been 

convicted of a simple possession offense that has not been 

enhanced based on the fact of a prior felony conviction, he has 

not been ‘convicted’” of the enhanced offense). Wilson argued 

that he had no prior conviction punishable by a term of 

imprisonment exceeding one year. The district court denied 

Wilson’s motion but allowed him to enter a conditional guilty 

plea preserving this issue for appeal. The court sentenced 

Wilson to twenty-six months’ imprisonment, and Wilson timely 

appealed.

United States v. Simmons, 649 F.3d 237, 2011 WL 3607266 (4th 

Cir. 2011) (en banc), Wilson has filed in this court a motion to 

vacate his conviction and remand for further proceedings. The 
3

Government does not oppose the motion.1

In reviewing the denial of a motion to dismiss the 

indictment, we review the district court’s factual findings for 

clear error and its legal conclusions de novo. United States v. 

Woolfolk, 399 F.3d 590, 594 (4th Cir. 2005).

 We grant Wilson’s 

motion.

Under 18 U.S.C. § 922(g), it is unlawful for one 

previously convicted of a felony to possess “in or affecting 

commerce[] any firearm or ammunition.” A felony is defined as a 

conviction “in any court of [] a crime punishable by 

imprisonment for a term exceeding one year.” 18 U.S.C. 

§ 922(g)(1). At the time the district court denied Wilson’s 

motion to dismiss, his argument that he had no prior felony 

convictions in the district court was foreclosed by our decision 

in United States v. Harp, 406 F.3d 242, 246-47 (4th Cir. 2005) 

(holding that “to determine whether a conviction is for a crime 

punishable by a prison term exceeding one year” the court should 

consider “the maximum aggravated

 1 While the Government’s response first notes that Wilson 

moved this court “to vacate [his] conviction and remand to the 

trial court,” the response later states that the Government 

requests that Wilson’s “sentence be vacated and the case 

remanded to the district court for resentencing.” However, as 

Wilson challenges only his conviction in this court, not his 

sentence, we assume that the Government’s stated acquiescence in 

resentencing reflects an inadvertent clerical error.

sentence that could be imposed 
4

for that crime upon a defendant with the worst possible criminal 

history” and not the maximum sentence that could be imposed on 

the actual defendant being sentenced). Subsequently, however, 

this court overruled Harp with its en banc decision in Simmons

In view of our holding in 

, 

(holding that consideration of hypothetical aggravating factors 

and criminal history is inappropriate when determining whether a 

prior offense constitutes a felony).

Simmons, we grant Wilson’s 

motion to vacate his conviction and remand the case to the 

district court for proceedings consistent with this opinion. 

Because we cannot determine from the current record whether, in 

light of Simmons, Wilson’s prior conviction would qualify as a 

felony under § 922(g)(1), we express no opinion on that issue 

and leave that determination, as well as the companion question 

whether the judgment should be reimposed or the indictment 

dismissed, for the district court on remand.2 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 clerk is 

directed to issue the mandate forthwith.

 2 We of course do not fault the Government or the district 

court for reliance on, and application of, unambiguous circuit 

authority at the time of Wilson’s indictment and conviction.

VACATED AND REMANDED