UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4794

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KENDRICK MONTRELL COFIELD,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Terrence W. Boyle, 

District Judge. (5:09-cr-00048-BO-1)

Submitted: September 15, 2011 Decided: September 22, 2011

Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, 

Assistant Federal Public Defender, Raleigh, North Carolina, for 

Appellant. George E. B. Holding, United States Attorney, Ann M. 

Hayes, Jennifer P. May-Parker, Assistant United States 

Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Kendrick Montrell Cofield appeals his conviction 

following his conditional guilty plea to possession of a firearm 

by a convicted felon,1

We review de novo a district court’s denial of a 

motion to dismiss the indictment where denial depends on a 

question of law. 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).

in violation of 18 U.S.C. §§ 922(g)(1), 

924 (2006). On appeal, Cofield argues that the North Carolina 

conviction forming the basis for his federal conviction was not 

punishable by more than one year in prison, and therefore he is 

not a convicted felon. We agree. Accordingly, we vacate the 

judgment and remand with directions that the indictment be 

dismissed.

Cofield was charged and convicted consistent with our 

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

Cir. 2005). We recently overruled Harp with our en banc 

decision in United States v. Simmons, __ F.3d __, 2011 WL 

 1 By entering a conditional guilty plea, Cofield preserved

his right to appeal the district court’s denial of his motion to 

dismiss his indictment. 
3

3607266, at *3 (4th Cir. Aug. 17, 2011), in which we held that a 

North Carolina conviction may not be classified as a felony 

based upon the maximum aggravated sentence that could be imposed 

upon a repeat offender if the particular defendant was not 

eligible for such a sentence. Simmons, 2011 WL 3607266, at *8. 

As established by his state court judgment, Cofield was not 

eligible for a sentence that exceeded one year. Thus, under 

Simmons, Cofield’s predicate North Carolina conviction was not 

for a crime punishable by more than one year in prison and thus 

cannot support his federal indictment.2

Accordingly, we vacate the judgment and remand with 

directions that the district court dismiss the indictment. 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.

VACATED AND REMANDED

 2 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 Cofield’s indictment and 

conviction.