UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-5167

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

REGINALD RENARD ROSS,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Greensboro. James A. Beaty, Jr.,

Chief District Judge. (1:08-cr-00483-JAB-1)

Submitted: September 15, 2011 Decided: September 28, 2011

Before GREGORY, SHEDD, and WYNN, Circuit Judges.

Reversed and remanded by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, Eric D. Placke, 

Assistant Federal Public Defender, Greensboro, North Carolina, 

for Appellant. Ripley Rand, United States Attorney, Michael F. 

Joseph, Assistant United States Attorney, Greensboro, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

A jury convicted Reginald Renard Ross of possession of 

a firearm by a convicted felon, in violation of 18 U.S.C. 

§§ 922(g)(1), 924(a)(2) (2006). He now appeals the district 

court’s judgment, challenging the denial of his motion for 

judgment of acquittal on the ground that his prior North 

Carolina convictions were not felonies inasmuch as they were not 

“punishable for a term of imprisonment exceeding one year.” In 

light of our recent decision in United States v. Simmons, ___ 

F.3d ___, 2011 WL 3607266 (4th Cir. Aug. 17, 2011) (en banc), we 

reverse Ross’ conviction and remand for further proceedings. 

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 

Ross’ 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 defendant with the worst 

possible criminal history.” United States v. Harp, 406 F.3d 

242, 246 (4th Cir. 2005). While Ross’ appeal was pending, 

however, Harp was overruled by the en banc decision in Simmons. 

See Simmons, 2011 WL 3607266, at *3. Simmons held that a prior 

North Carolina offense was punishable for a term exceeding one 
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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. § 15A1340.17(c)-(d) (2009) (setting forth North Carolina’s structured 

sentencing scheme). We agree with Ross 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 Ross was 

never convicted of a crime 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 Ross’ indictment 

and conviction. Accordingly, we reverse Ross’ conviction and 

remand for further proceedings. 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.

REVERSED AND REMANDED