                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS
                                                                         FILED
                               FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                        U.S.
                                ________________________ ELEVENTH CIRCUIT
                                                                     SEPT 30, 2010
                                       No. 10-10280                   JOHN LEY
                                   Non-Argument Calendar                CLERK
                                 ________________________

                            D.C. Docket No. 1:08-cr-00389-JC-C-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                               Plaintiff - Appellee,

                                            versus


EDMOND HUDMOND SMITH, IV,

lllllllllllllllllllll                                            Defendant - Appellant.

                                ________________________

                          Appeal from the United States District Court
                             for the Southern District of Alabama
                                 ________________________

                                     (September 30, 2010)

Before DUBINA, Chief Judge, EDMONDSON and MARTIN, Circuit Judges.

PER CURIAM:

         Appellant Edmond Hudmond Smith appeals his conviction for being a felon
in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). Smith argues

that the district court erred by denying his motion for judgment of acquittal

because it erroneously concluded that he previously was convicted of a felony in

Alabama state court under Alabama Code § 13A-11-72(a). Smith argues that he

was convicted of a misdemeanor under subsection (b) of that statute. In support,

Smith points to the certified copy of the judgment (“Conviction Report”), which

states that he was convicted under § 13A-11-72(b), and to the fact that he was

sentenced to only six months’ imprisonment.

      We review the denial of a motion for judgment of acquittal de novo. United

States v. DuBose, 598 F.3d 726, 729 (11th Cir. 2010). “In reviewing the

sufficiency of the evidence underlying a conviction, we consider the evidence in

the light most favorable to the government.” Id. (internal quotation marks

omitted).

      Under § 922(g)(1), it is unlawful for a person “who has been convicted in

any court of a crime punishable by imprisonment for a term exceeding one year,”

to ship, transport, or receive ammunition affecting interstate commerce. 18 U.S.C.

§ 922(g)(1). Relevant to this case, subsection (a) of the Alabama statute entitled

“Certain persons forbidden to possess pistol,” prohibits a person who has been

convicted “of committing or attempting to commit a crime of violence” from

                                          2
owning a pistol or having one in his possession or under his control. Ala. Code

§ 13A-11-72(a). Subsection (b) provides that “No person who is a drug addict or

an habitual drunkard shall own a pistol or have one in his or her control.” Id.

§ 13A-11-72(b). A violation of subsection (a) of § 13A-11-72 is considered to be

a Class C felony and is punishable for not “less than 1 year and 1 day,” and “not

more than five years.” See Matchum v. State, 880 So.2d 1202, 1208 (Ala. Crim.

App. 2003); Ala. Code §§ 13A-5-4, 13A-5-6(a)(3), 13A-11-84(a). In contrast, a

conviction under subsection (b) of § 13A-11-72 is considered to be a

misdemeanor, “punishable by imprisonment for any term less than one year.” See

Ala. Code §§ 13A-11-72(b), 13A-11-84, 13A-1-2(9) (defining “misdemeanor” as

“[a]n offense for which a sentence to a term of imprisonment not in excess of one

year may be imposed”).

         The parties do not disputed that a conviction under § 13A-11-72(b) is a

misdemeanor conviction and a conviction under § 13A-11-72(a) is a felony

conviction. The only dispute is whether the district court was correct in its

determination that Smith was convicted under § 13A-11-72(a) and not § 13A-11-

72(b).

         The evidence supports the district court’s finding that Smith was indicted

for and pleaded guilty to a felony offense. The indictment specifically references

                                           3
§ 13A-11-72(a) and does not made any allegations supporting a conviction under

§ 13A-11-72(b). During the plea colloquy, the state court judge informed Smith

that the offense to which he pleaded guilty carries a maximum five-year prison

term. The paperwork completed following the plea includes a reference to the

offense being a felony and Smith paid the docketing fee applicable to a felony

conviction. Further, the district court sentenced Smith to a term longer than one

year in prison based on the more than six months of credited time served

combined with the additional six-month term imposed at sentencing. See United

States v. Glover, 154 F.3d 1295–96 (11th Cir. 1998) (in determining the sentence

imposed, aggregate the credit awarded by the sentencing court for time served and

the additional sentence term imposed).

      Therefore, we conclude that Smith’s criminal history included a felony

conviction under Alabama Code § 13A-11-72(a), for which he served a sentence

in excess of one year. Thus, the district court correctly determined that this

predicate offense constituted a felony and, therefore, supported Smith’s conviction

under § 922(g)(1). Accordingly, we affirm the district court’s denial of Smith’s

motion for judgment of acquittal.

      AFFIRMED.




                                          4
