UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-5235

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JASON MICHAEL PARRISH,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. William L. Osteen, 

Jr., District Judge. (1:10-cr-00112-WO-1)

Submitted: September 6, 2011 Decided: September 13, 2011

Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, William C. Ingram, 

First Assistant Federal Public Defender, Greensboro, North 

Carolina, for Appellant. Ripley Rand, United States Attorney, 

Robert A. J. Lang, Assistant United States Attorney, WinstonSalem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Jason Michael Parrish appeals the district court’s 

judgment, challenging his conviction for possessing a firearm as 

a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006), 

asserting that his prior North Carolina convictions were not 

felonies inasmuch as they were not punishable for a term of 

imprisonment exceeding one year. The district court denied 

Parrish’s motion to dismiss the indictment, relying on this 

court’s decision in United States v. Harp, 406 F.3d 242, 246 

(4th Cir. 2005). Parrish entered a conditional plea of guilty 

to the § 922(g)(1) charge, and timely appealed. 

This court reviews de novo a district court’s denial 

of a motion to dismiss the indictment where denial depends on a 

question of law. See United States v. Hatcher, 560 F.3d 222, 

224 (4th Cir. 2009). This appeal turns on § 922(g)(1)’s 

prohibition of 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). 

At the time of Parrish’s indictment and conviction, 

this court determined whether a prior conviction qualified as a 

felony for purposes of § 922(g)(1) by considering “the maximum 

aggravated sentence that could be imposed for that crime upon a 
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defendant with the worst possible criminal history.” Harp, 406 

F.3d at 246. While Parrish’s appeal was pending, however, Harp

was overruled by our en banc decision in United States v. 

Simmons, F.3d , 2011 WL 3607266 (4th Cir. Aug. 17, 2011) 

(en banc). Simmons held that a prior North Carolina offense was 

punishable for a term exceeding one year only if the particular 

defendant before the court had been eligible for such a sentence 

under the applicable statutory scheme, taking into account his 

criminal history and the nature of his offense. Id., at *8; see 

also N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting forth 

North Carolina’s structured sentencing scheme). We agree with 

Parrish that, on the record before us, he was not eligible on 

his North Carolina convictions to receive a sentence exceeding 

one year.

Because Simmons directs the conclusion that Parrish 

was never convicted of a felony punishable by more than one year 

of incarceration, he cannot be convicted as a felon in 

possession of a firearm under § 922(g)(1).*

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

court for their reliance upon unambiguous circuit authority at 

the time of Parrish’s indictment and conviction.

 Accordingly, we 

vacate the district court’s judgment and remand for further 

proceedings. We dispense with oral argument because the facts 
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and legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process.

VACATED AND REMANDED