U.S. v. Simmons

• Decision Date: 18 March 2011
• Docket Number: No. 08–4475.,08–4475.
• Citation: 635 F.3d 140
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Jason Edward SIMMONS, Defendant–Appellant.North Carolina Advocates for Justice, Amicus Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

635 F.3d 140

UNITED STATES of America, Plaintiff–Appellee,

v.Jason Edward SIMMONS, Defendant–Appellant.North Carolina Advocates for Justice, Amicus Supporting Appellant.

No. 08–4475.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 8, 2010.Decided: Feb. 16, 2011.Rehearing En Banc Granted March 18, 2011.

ARGUED: Andrew Brady Banzhoff, Devereux & Banzhoff, PLLC, Asheville, North Carolina, for Appellant. Amy Elizabeth Ray, Office of the United States Attorney, Asheville, North Carolina, for Appellee. ON BRIEF: Anne M. Tompkins, United States Attorney, Adam Morris, Assistant United States Attorney, Office of the United States Attorney, Charlotte, North Carolina, for Appellee. Christopher C. Fialko, Rudolf Widenhouse & Fialko, Charlotte, North Carolina, for Amicus Supporting Appellant.Before SANDRA DAY O'CONNOR, Associate Justice (Retired), Supreme Court of the United States, sitting by designation, and DUNCAN and AGEE, Circuit Judges.Affirmed by published opinion. Judge AGEE wrote the opinion, in which Justice O'CONNOR and Judge DUNCAN concurred.

OPINION

AGEE, Circuit Judge:

Jason Edward Simmons challenges the district court's use of a prior North Carolina state conviction for purposes of imposing an enhanced sentence under 21 U.S.C. § 841(b)(1)(D). The case is before us after a remand from the Supreme Court. Simmons v. United States, ––– U.S. ––––, 130 S.Ct. 3455, 177 L.Ed.2d 1048 (June 21, 2010). In a previous unpublished per curiam opinion, we concluded that our decision in United States v. Harp, 406 F.3d 242 (4th Cir.2005), remained controlling precedent after the Supreme Court's intervening decision in United States v. Rodriquez, 553 U.S. 377, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008). United States v. Simmons, 340 Fed.Appx. 141 (4th Cir.2009) (per curiam) (unpublished). We therefore affirmed the judgment of the district court because, under Harp, Simmons' state conviction qualified as a “felony drug offense” as defined in 21 U.S.C. § 802(44), and therefore supported an enhanced sentence under § 841(b)(1)(D). Id. at 143–44.

The Supreme Court granted certiorari, vacated our opinion, and remanded for further consideration in light of Carachuri–Rosendo v. Holder, 560 U.S. ––––, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010). See 130 S.Ct. 3455. Having made that consideration, we again affirm the judgment of the district court.

I.

Simmons pled guilty, without the benefit of a written plea agreement, to three criminal counts in the United States District Court for the Western District of North Carolina: (1) conspiracy to distribute at least 100 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846; (2) possession of at least five kilograms of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D); and (3) possession of at least twenty kilograms of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(v).

The Government had previously filed an information pursuant to 21 U.S.C. § 851 notifying Simmons that it intended to rely on a January 1996 North Carolina state conviction (“1996 conviction”) for possession with intent to sell or deliver marijuana, in violation of N.C. Gen.Stat. § 90–95(a), as the basis for seeking an enhanced sentence under 21 U.S.C. § 841(b)(1)(D).¹ Simmons opposed the Government's use of the 1996 conviction to support an enhanced sentence, arguing that the conviction did not qualify as a “felony drug offense” as defined in 21 U.S.C. § 802(44).² Furthermore, Simmons argued that even if the 1996 conviction was a § 802(44) felony drug offense, that conviction had been obtained in violation of his Sixth Amendment right to effective counsel. The district court rejected both of Simmons' arguments and sentenced Simmons to 120 months' imprisonment on each count, to be served concurrently.

Simmons appealed his sentence, making the same arguments he made in the district court. Specifically, he contended that he was not subject to the mandatory minimum sentence under § 841(b)(1)(D) for his current federal drug convictions because under North Carolina's sentencing system, he could not have received a sentence in excess of 12 months for his 1996 conviction because no aggravating factors were present in his case.³ Simmons asserted that because his 1996 conviction could not subject him to imprisonment for more than a year, it was not a conviction for a “felony drug offense” as defined in § 802(44).

As noted, we affirmed the district court's judgment based on our decision in Harp. Following the vacatur of our opinion in the Supreme Court's remand order, we ordered supplemental briefing and heard additional oral argument on the applicability of Carachuri–Rosendo to the issues in this case. For the reasons discussed below, we do not find Carachuri–Rosendo compels a different result in the case at bar. Our prior precedent in Harp is thus unaffected by that decision and continues to control the disposition of this case.

II.

A.

We begin by summarizing the Supreme Court's decision in Carachuri–Rosendo. The issue before the Court was whether one of Carachuri–Rosendo's prior state misdemeanor convictions for drug possession constituted an “aggravated felony” for immigration law purposes under 8 U.S.C. § 1229b(a)(3). See 130 S.Ct. at 2580. An aggravated felony conviction would make Carachuri–Rosendo ineligible for discretionary relief from removal proceedings.⁴ Looking through “[t]he maze of statutory cross-references,” the Supreme Court held that Carachuri–Rosendo's state conviction was not an “aggravated felony” under the applicable definitional section, 8 U.S.C. § 1101(a)(43). Id. at 2580–81.

The Court began its analysis by observing the cross-referenced federal statutes criminalizing simple possession of the narcotics at issue in Carachuri–Rosendo's state conviction. Based on that analysis, the Court concluded Carachuri–Rosendo's acts underlying the state court conviction would have subjected him to a maximum term of imprisonment of less than one year had the prosecution been in federal court unless the conviction was for what the Court denominated “recidivist simple possession,” which was punishable by a term of imprisonment of up to two years. Thus, only a conviction for recidivist possession “conceivably” qualified as an “aggravated felony” under 8 U.S.C. § 1101(a)(43). Id. at 2581–83.

The Supreme Court then rejected the argument that Carachuri–Rosendo's state conviction was an “aggravated felony” because he “ could have been prosecuted” in federal court for recidivist simple possession due to his prior drug offenses. Id. at 2584, 2587 (emphasis added). Instead, the Court looked to Carachuri–Rosendo's actual offense of conviction, which was a simple possession offense. The Supreme Court also noted that Texas law authorizes a sentencing enhancement for such a conviction only if the prosecutor proves the defendant had been previously convicted of an offense of a similar class. Although the Texas prosecutor could have charged Carachuri–Rosendo as a recidivist and sought such an enhancement, the prosecutor elected not to do so, and instead charged him only for simple possession. Id. at 2585–88. Thus under the state statute by which Carachuri–Rosendo was charged and convicted, Carachuri–Rosendo's conviction was for simple possession without a recidivist component.

The Court concluded that adopting the Government's position would ignore the text of 8 U.S.C. § 1229b(a)(3), which requires that an individual have been “ convicted of a[n] aggravated felony” rather than that the individual “might have or could have been charged” with a felony. Id. at 2586 (internal quotation marks omitted). The Supreme Court emphasized

the Government's abstracted approach to [drug offenses] cannot be reconciled with the more concrete guidance of 8 U.S.C. § 1229b(a)(3), which limits the Attorney General's cancellation authority only when the noncitizen has actually been “convicted of a[n] aggravated felony”—not when he merely could have been convicted of a felony but was not.

Id. at 2587.

In conclusion, the Supreme Court's decision in Carachuri–Rosendo held that “the text and structure of the relevant statutory provisions demonstrate” that

the defendant must have been actually convicted of a crime that is itself punishable as a felony under federal law. The mere possibility that the defendant's conduct, coupled with facts outside of the record of conviction, could have authorized a felony conviction under federal law is insufficient to satisfy the statutory command that a noncitizen be “convicted of a[n] aggravated felony” before he loses the opportunity to seek cancellation of removal.

Id. at 2589 (quoting 8 U.S.C. § 1229b(a)(3)).

B.

On remand, Simmons contends the “practical effect of [ Carachuri–Rosendo ] is to discard the ‘hypothetical defendant’ analysis [of Harp ] and to replace it with a framework which looks at whether the defendant was actually prosecuted” for an offense with characteristics subjecting him to an actual “possibility of a sentence in excess of one year.” (Appellant's Supp. Br. 6.) Simmons asserts that because his criminal history placed him in “prior record level 1” for his state Class I felony conviction under N.C. Gen.Stat. § 15A–1340.17, he did not face a sentence in excess of one year under any circumstances. Accordingly, Simmons maintains that his 1996 conviction does not qualify as a “felony drug offense” for purposes of enhancing his sentence under 21 U.S.C. § 842(b)(1)(D).

The Government responds that Carachuri–Rosendo's holding is narrower than Simmons contends and does not address the issue in this case, which was previously decided in Harp and is supported by the Supreme Court's decision in Rodriquez. Pointing to Rodriquez, the Government observes that the Supreme Court considered and rejected the contention that mandatory sentencing guidelines that cap a defendant's punishment range decrease the “maximum...