UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4933

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL UYIOGHOSA OHANGBON,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. Thomas D. Schroeder, 

District Judge. (1:09-cr-00346-TDS-1)

Submitted: March 30, 2012 Decided: April 17, 2012

Before WILKINSON, DAVIS, and WYNN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

David Bruce Freedman, CRUMPLER, FREEDMAN, PARKER & WITT, 

Winston-Salem, North Carolina, for Appellant. Randall Stuart 

Galyon, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Michael Uyioghosa Ohangbon pleaded guilty, pursuant to 

a plea agreement, to possession with intent to distribute 

marijuana, in violation of 21 U.S.C. § 841(a)(1) (2006), and 

possession of a firearm by a convicted felon, in violation of 18 

U.S.C. § 922(g)(1) (2006). Following a successful appeal, in 

which we affirmed the convictions but vacated the sentence, 

Ohangbon was resentenced to concurrent thirty-month terms of 

imprisonment. In this appeal, Ohangbon argues that his § 922(g) 

conviction is no longer valid in light of our decision in United 

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

In Simmons, we overruled United States v. Harp, 406 

F.3d 242 (4th Cir. 2005), and held that a North Carolina state 

conviction may not be classified as punishable by a term of 

imprisonment exceeding one year based on the maximum aggravated 

sentence that could be imposed on a repeat offender if the 

individual defendant was not eligible for such a sentence. 

Simmons, 649 F.3d at 241, 243-48. 

Ohangbon’s § 922(g) conviction was supported by his 

North Carolina conviction for possession with intent to 

distribute marijuana, a class I felony. See N.C. Gen. Stat. 

§§ 90-95(b)(2), 90-94(1) (2011). The record does not include 

the state court judgment and it is not clear what Ohangbon’s 

prior record level was at his state sentencing. However, the 
3

record does reflect that Ohangbon was ultimately sentenced to a 

suspended sentence of six to eight months’ imprisonment. 

Accordingly, it appears that he could not have been sentenced to 

imprisonment for a term exceeding one year because even if he 

faced a minimum sentence of eight months, Ohangbon was exposed 

to a maximum term of imprisonment of no more than ten months. 

N.C. Gen. Stat. § 15A-1340.17 (d) (2003). Applying Simmons, it 

appears that Ohangbon did not have the requisite predicate 

offense to be convicted of being a felon in possession of a 

firearm. We remand to the district court for the appropriate

determination regarding this prior conviction.

Accordingly, we vacate Ohangbon’s § 922(g) conviction 

and his sentence 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