UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-5139

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TYRAN MATRICE BRACE,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Martin K. Reidinger, 

District Judge. (3:09-cr-00136-MR-1)

Submitted: September 22, 2011 Decided: September 30, 2011

Before AGEE and WYNN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Reversed and remanded by unpublished per curiam opinion.

Claire J. Rauscher, Executive Director, Ann L. Hester, Angela G. 

Parrott, Assistant Federal Defenders, Erin K. Taylor, Research 

and Writing Attorney, Charlotte, North Carolina, for Appellant. 

Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant 

United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Tyran Matrice Brace 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), reserving 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 conviction for conspiracy to commit breaking and entering, 

pursuant to which a defendant with a criminal record similar to 

Brace’s faced a maximum possible sentence of ten months under 

North Carolina law. 

Brace appealed, arguing that his prior conviction was 

not “punishable by imprisonment for a term exceeding one year” 

under the Supreme Court’s decision in Carrachuri-Rosendo v. 

Holder, 130 S. Ct. 2577 (2010). 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, No. 08-4475, ___ F.3d ___, 

2011 WL 3607266, at *3 (4th Cir. Aug. 17, 2011) (en banc). The 
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reasoning in Simmons applies with equal force to predicate 

convictions as defined in 18 U.S.C. § 922(g)(1). See CarachuriRosendo, 130 S. Ct. at 2586-87 (distinguishing between “conduct 

punishable as a felony” and conviction of a felony offense); 

Simmons

Accordingly, we reverse Brace’s conviction and 

sentence and remand for further proceedings.

, 2011 WL 3607266, at *8 (concluding that the North 

Carolina Structured Sentencing Act “creates separate offenses 

that in turn yield separate maximum punishments”). Thus, 

because Brace’s underlying conviction was not punishable by a 

term exceeding one year, Brace’s conduct — possessing a firearm 

— did not violate § 922(g). 

*

 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.

 * This disposition conveys no criticism of either the 

Government or the district court, both of which dutifully 

applied circuit precedent at the time of Brace’s prosecution and 

sentencing that was then authoritative but that was later 

reversed by Simmons. See United States v. Harp, 406 F.3d 242 

(4th Cir. 2005).

REVERSED AND REMANDED