United States v. Perry

384 F. App'x 245

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-5062

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARTA ERWIN PERRY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:09-cr-00106-FL-1)

Submitted: June 17, 2010 Decided: June 23, 2010

Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, Eric J. Brignac, Research and Writing Specialist, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, William M. Gilmore, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

A federal grand jury indicted Marta Erwin Perry for

possession of a firearm after having previously been convicted

of a crime punishable by a term of imprisonment exceeding one

year, in violation of 18 U.S.C. § 922(g)(1) (2006). Perry filed

a motion to dismiss the indictment that the district court

denied. Perry then entered a guilty plea to the charge,

reserving his right to appeal the denial of his motion to

dismiss. The court sentenced Perry to eighty-four months of

imprisonment and Perry now appeals. Finding no error, we

affirm.

On appeal, Perry argues that the district court erred

in denying his motion to dismiss the indictment. We review a

district court’s denial of a motion to dismiss an indictment de

novo. United States v. Brandon, 298 F.3d 307, 310 (4th Cir.

2002) (citation omitted); see United States v. Thornton, 554

F.3d 443, 445 (4th Cir. 2009) (reviewing whether state felony

offense is a crime of violence de novo).

Perry argues that he was legally innocent of violating

§ 922(g)(1) because his prior convictions for breaking and

entering, larceny, speeding to elude, and breaking and entering

a vehicle were not punishable by a term of imprisonment

exceeding one year. While Perry’s argument is concededly

foreclosed by United States v. Harp, 406 F.3d 242, 246-47 (4th

2 Cir. 2005), he argues that the subsequent decisions in United

States v. Rodriguez, 553 U.S. 337 (2008), and United States v.

Pruitt, 545 F.3d 416 (6th Cir. 2008), have undermined this

court’s holding in Harp. We have thoroughly reviewed the record

and the relevant legal authorities and conclude that our holding

in Harp is consistent with the Supreme Court’s decision in

Rodriguez. Further, to the extent Pruitt may be inconsistent

with Harp, decisions by our sister circuits are simply not

binding upon this court.

We therefore affirm the judgment of the district

court. 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 in the decisional

process.

AFFIRMED