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United States v. Bame

United States District Court, M.D. North Carolina

May 7, 2015

UNITED STATES OF AMERICA,
v.
VERNON WADE BAME, JR., Defendant.

MEMORANDUM OPINION AND ORDER

JAMES A. BEATY, Jr., District Judge.

This matter is before the Court on Defendant Vernon Wade Bame, Jr.'s ("Defendant") Motion to Dismiss [Doc. #12], in which Defendant seeks dismissal of Count One of the instant Indictment. Count One charges Defendant with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Defendant argues that his prior North Carolina convictions do not qualify as felonies under § 922(g)(1) because he did not face a term of actual imprisonment in excess of one year. A hearing on Defendant's Motion was held on May 5, 2015, at the end of which this Court determined it would deny Defendant's Motion. This Memorandum Opinion and Order is entered consistent with this Court's findings and conclusions as stated at the May 5, 2015 hearing.

I. FACTUAL AND PROCEDURAL BACKGROUND

The relevant background information is as follows. On February 24, 2015, a Grand Jury returned a two-count Indictment against Defendant, charging him in Count One with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and in Count Two with possession of a stolen firearm in violation of 18 U.S.C. § 922(j). As is relevant here, § 922(g)(1) is triggered only when a person "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). Defendant has three prior North Carolina state convictions that might possibly qualify Defendant as a felon within the meaning of § 922(g)(1) for purposes of Count One.

Defendant was previously convicted in the Davidson County, North Carolina Superior Court on February 11, 2014 of two counts of selling schedule IV controlled substances for offenses occurring on October 30, 2013 and November 12, 2013. The judgments from the Superior Court indicate that under North Carolina law, Defendant's convictions were Class H felonies, and Defendant had a Prior Record Level of II. Defendant was sentenced within the "presumptive range" of sentences, meaning that the Superior Court did not find any mitigating or aggravating factors present. The judgment imposed a 4 to 14 month sentence for each count of selling schedule IV controlled substances. The sentences were suspended for 30 months with several conditions.

Defendant's third North Carolina felony conviction was for obtaining property by false pretenses, with an offense date of June 28, 2013. Defendant was convicted on May 12, 2014, in Davidson County, North Carolina Superior Court. The judgment indicates that Defendant's conviction for obtaining property by false pretenses was a Class H felony, and Defendant had a Prior Record Level of III at the time of conviction and sentencing for this offense. Defendant was sentenced within the "presumptive range." The Superior Court imposed an 8 to 19 month sentence suspended for 24 months, with several conditions.

Based on Defendant's interpretation of applicable North Carolina sentencing law, Defendant filed a Motion to Dismiss [Doc. #12] on April 24, 2015. The Motion sought dismissal of Count One of the Indictment for failure to state an offense, because Defendant contends that his prior North Carolina convictions were not punishable for a term in excess of one year. At the May 5, 2015 hearing on the Motion, the Government opposed the Motion.

II. LEGAL STANDARD

Rule 12(b)(3) of the Federal Rules of Criminal Procedure permits a defendant to file a pretrial motion to dismiss an indictment that is defective by virtue of failing to state an offense. Fed. R. Crim. Proc. 12(b)(3)(b)(v). Such a motion to dismiss "tests whether the indictment sufficiently charges the offense set forth against the defendant." United States v. Brandon, 150 F.Supp.2d 883, 884 (E.D. Va. 2001) (citing United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962)). An indictment must generally state the necessary elements of the charged offense, accompanied by a statement of facts supporting the charge and informing the defendant of the specific conduct alleged to constitute the offense. United States v. Perry, 757 F.3d 166, 171 (4th Cir. 2014); see United States v. Brandon, 150 F.Supp.2d 883, 884 (E.D. Va. 2001)(citing Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907-08, 41 L.Ed.2d 590 (1974)).

III. DISCUSSION

Defendant argues that the indictment fails to state an offense because his underlying North Carolina convictions were not punishable for a term of imprisonment in excess of one year. Defendant bases this argument on a term of post-release supervision that is included in the sentences of certain North Carolina state felonies.

As is relevant here, North Carolina General Statute § 15A-1340.13 sets out the procedure a North Carolina state court follows when sentencing a defendant. Initially, the court must determine the Prior Record Level of the defendant and the Class of Offense at issue. N.C. Gen. Stat. § 15A-1340.13(b). Based on these two determinations, in conjunction with any aggravating or mitigating factors, the court then determines the applicable minimum and maximum sentence, as specified in North Carolina General Statute § 15A-1340.17, unless other applicable statutes require a different sentence. Id. § 15A-1340.13(b)-(e). As to post-release supervision for such sentences, the Justice Reinvestment Act of 2011 ("JRA")[1] as codified provides that "a prisoner to whom this Article applies shall be released from prison for post-release supervision on the date equivalent to his maximum imposed prison term... less nine months in the case of Class F through I felons[.]" Id. § 15A-1368.2(a). A defendant cannot choose to serve this portion of his sentence in prison rather than serve the portion as post-release supervision. Id. § 15A-1368.2(b). "When a supervisee completes the period of post-release supervision, the sentence or sentences from which the supervisee was placed on post-release supervision are terminated." Id. § 15A-1368.2(f).

Based on reading § 15A-1340.17 in conjunction with § 15A-1368.2, Defendant asserts that Defendant's convictions were not punishable by a term of imprisonment exceeding one year for purposes of § 922(g)(1). Defendant argues that because his prior North Carolina felonies are all Class H felonies, each of his prior sentences of imprisonment contained a 9-month term of post-release supervision. Thus, according to Defendant, this Court must effectively consider the maximum term of imprisonment Defendant was sentenced to for the prior convictions, then subtract 9 months for the mandatory post-release supervision term, in order to determine whether Defendant was convicted of an offense punishable by a term in excess of one year.

In the present matter, Defendant received a 4 to 14 month sentence for each of his prior convictions of selling Schedule IV controlled substance, and he received an 8 to 19 month sentence for his prior conviction of obtaining property by false pretenses.[2] Defendant frames the previous convictions as each consisting of two components: first, a sentence of imprisonment, and second, a mandatory term of post release supervision. By Defendant's reasoning, Defendant was sentenced to a maximum of 5 months of imprisonment, followed by 9 months of post-release supervision, as to each conviction of selling Schedule IV controlled substance, and a maximum of 10 months of imprisonment, again followed by 9 months of post-release supervision, for his obtaining property by false pretenses conviction. Defendant asserts that because each of the sentences for his North Carolina convictions effectively contained a period of 9 months during which he would be released on supervision, the term of actual imprisonment was necessarily less ...


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