Overturned: Gunslinger Dodges a Felony Possession Bullet

By Robyn Hagan Cain on September 14, 2011 | Last updated on March 21, 2019

If you represent a North Carolina client with a felony possession conviction, you may have new grounds for appeal.

In an unpublished opinion, the Fourth Circuit Court of Appeals vacated and remanded a man's conviction for possessing a firearm as a convicted felon based on an August 2011 Fourth Circuit opinion in U.S. v. Simmons.

The appellant, Jason Michael Parrish, challenged the conviction by asserting that his priors were not felonies because they were not punishable by a term of imprisonment exceeding one year.

After the district court relief on the Fourth Circuit’s 2005 U.S. v. Harp decision to deny Parrish’s initial motion to dismiss the indictment, Parrish entered a conditional guilty plea.

At the time of Parrish’s conviction, the Fourth Circuit Court of Appeals determined whether a prior conviction qualified as a felony under federal felony possession statutes using the Harp standard: considering the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.

While Parrish’s appeal was pending, however, the Fourth Circuit overruled itself in Simmons, finding that a prior North Carolina offense was punishable for a term exceeding one year only if the particular defendant was eligible for such a sentence.

After considering Parrish’s criminal history and offense, the Fourth Circuit Court of Appeals agreed that Parrish was not eligible for a sentence term exceeding one year, and therefore could not be convicted as a felon in posession of a firearm.

We think this is a far more judicious interpretation of the statute. What do you think? Will this policy shift benefit any of your clients?

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