UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-5328

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JASON ROBERT MCGAHA,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. James C. Dever, III, 

Chief District Judge. (7:09-cr-00131-D-2)

Submitted: September 28, 2011 Decided: October 14, 2011

Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Richard Croutharmel, Raleigh, 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Unpublished opinions are not binding precedent in this circuit.
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PER CURIUM:

Pursuant to a plea agreement, Jason Robert McGaha pled 

guilty to possession of a firearm by a convicted felon, and 

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

924(e), 2 (2006). The district court designated McGaha an armed 

career criminal, based on several North Carolina state felony 

breaking and entering convictions, as well as a North Carolina 

state felony conviction for eluding arrest with a motor vehicle 

with two aggravating factors, and sentenced him to 192 months’ 

imprisonment. McGaha timely appealed. 

McGaha’s counsel filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), finding no meritorious grounds 

for appeal, but arguing that McGaha’s prior state convictions 

were not punishable by more than a year in prison and therefore 

he was improperly designated an armed career criminal.1 McGaha 

subsequently filed an unopposed motion to remand for 

resentencing in light of United States v. Simmons, ___ F.3d ___, 

2011 WL 3607266 (4th Cir. Aug. 17, 2011) (No. 08-4475). For the 

reasons that follow, we vacate the criminal judgment, grant the 

motion to remand, and remand the case to the district court for 

 1 Although advised of his right to do so, McGaha did not 

file a pro se supplemental brief.
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reconsideration of McGaha’s conviction and sentence in light of 

Simmons.

To qualify for the fifteen year mandatory minimum 

punishment under the Armed Career Criminal Act (“ACCA”), 18 

U.S.C. § 924(e), a felon in possession of a firearm must have 

three prior convictions for a violent felony or serious drug 

offense or both, committed on occasions different from one 

another. A qualifying offense must be punishable by a term 

exceeding one year. 18 U.S.C. § 924(e)(2)(B). Under North 

Carolina’s structured sentencing scheme, sentences are 

calculated based on an offender’s criminal history and whether 

his offense falls within the mitigated, presumptive, or 

aggravated range. N.C. Gen. Stat. § 15A-1340.17(c)-(d) (Lexis 

Nexis 2009).

At the time of McGaha’s conviction and sentencing, 

existing precedent established that a prior conviction for a 

violent felony or serious drug offense was punishable by a 

prison term exceeding one year if the maximum aggravated 

sentence that could be imposed for that crime upon a defendant 

with the worst possible criminal history was more than a year. 

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

Recently, however, we overruled Harp with our en banc decision 

in United States v. Simmons, 2011 WL 3607266 (4th Cir. Aug. 17, 

2011) (No. 08-4475), where we held that a North Carolina offense 
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may not be classified as a felony based upon the maximum 

aggravated sentence that could be imposed upon a repeat offender 

if the individual defendant was not eligible for such a 

sentence. Simmons, 2011 WL 3607266, at *3.

McGaha did not receive a sentence exceeding twelve 

months for any of his offenses and it is unclear from the record 

on appeal whether any of his convictions exposed him to a 

sentence exceeding twelve months.2

 Thus, it is unclear from the 

record whether McGaha was properly designated an armed career 

criminal or even whether he is guilty of the offense to which he 

pled guilty. Accordingly, we vacate the criminal judgment, 

grant McGaha’s unopposed motion to remand for resentencing, and 

remand to the district court for reconsideration of McGaha’s 

conviction and sentence in light of Simmons.3

This court requires that counsel inform McGaha, in 

writing, of the right to petition the Supreme Court of the 

United States for further review. If McGaha requests that a 

petition be filed, but counsel believes that such a petition 

 2 To the extent that McGaha was convicted of aiding and 

abetting a § 922(g) offense, it is unclear from the record on 

appeal whether McGaha’s co-defendant qualified as a felon for 

purposes of § 922(g).

3 In accordance with Anders, we have reviewed the entire 

record in this case and have found no other meritorious issues

for appeal. 
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would be frivolous, then counsel may move in this court for 

leave to withdraw from representation. Counsel’s motion must 

state that a copy thereof was served on McGaha. We dispense 

with oral argument because the facts and legal contentions are 

adequately presented in the materials before this court and 

argument would not aid the decisional process.

VACATED AND REMANDED