649 F.3d 237 (4th Cir. 2011), 08-4475, United States v. Simmons

Docket Nº:08-4475.
Citation:649 F.3d 237
Opinion Judge:DIANA GRIBBON MOTZ, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jason Edward SIMMONS, Defendant-Appellant. North Carolina Advocates For Justice; Federal Defenders of Western North Carolina, Incorporated; Office of the Federal Public Defender, for the Middle District of North Carolina; Office of the Federal Public Defender, for the Eastern District of North Caroli
Attorney:Andrew Brady Banzhoff, Devereux & Banzhoff, Asheville, North Carolina, for Appellant. Matthew Segal, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina, for Amici Supporting Appellant. Amy Elizabeth Ray, Office of the United States Attorney, Asheville, North Carolina, fo...
Judge Panel:Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, DAVIS, KEENAN, WYNN, and DIAZ, Circuit Judges. Vacated and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judges KING, GREGORY, SHEDD, DAVIS, KEENAN, WYNN, and DIAZ joined. Judge...
Case Date:August 17, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 237

649 F.3d 237 (4th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jason Edward SIMMONS, Defendant-Appellant.

North Carolina Advocates For Justice; Federal Defenders of Western North Carolina, Incorporated; Office of the Federal Public Defender, for the Middle District of North Carolina; Office of the Federal Public Defender, for the Eastern District of North Carolina, Amici Supporting Appellant.

No. 08-4475.

United States Court of Appeals, Fourth Circuit.

August 17, 2011

Argued: May 11, 2011.

Page 238

ARGUED:

Andrew Brady Banzhoff, Devereux & Banzhoff, Asheville, North Carolina, for Appellant.

Matthew Segal, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina, for Amici Supporting Appellant.

Amy Elizabeth Ray, Office of the United States Attorney, Asheville, North Carolina, for Appellee.

ON BRIEF:

Gretchen C.F. Shappert, 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 North Carolina Advocates for Justice, Amicus Supporting Appellant.

Claire J. Rauscher, Executive Director, Ann L. Hester, Assistant Federal Defender, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Federal Defenders of Western North Carolina, Incorporated, Office of the Federal Public Defender, for the Middle District of North Carolina, and Office of the Federal Public Defender, for the Eastern District of North Carolina, Amici Supporting Appellant.

Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, DAVIS, KEENAN, WYNN, and DIAZ, Circuit Judges.

Vacated and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judges KING, GREGORY, SHEDD, DAVIS, KEENAN, WYNN, and DIAZ joined. Judge DUNCAN wrote a dissenting opinion. Judge AGEE also wrote a dissenting opinion, in which Chief

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Judge TRAXLER and Judges WILKINSON, NIEMEYER, and DUNCAN joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

After Jason Simmons pled guilty to federal drug trafficking, the district court held that his prior state conviction for marijuana possession, for which he faced no possibility of imprisonment, was for an offense " punishable by imprisonment for more than one year," triggering a sentencing enhancement under the Controlled Substances Act. This enhancement doubled Simmons's minimum sentence. We affirmed in an unpublished opinion. See United States v. Simmons, 340 Fed.Appx. 141 (4th Cir.2009). The Supreme Court vacated that judgment and remanded the case to us for " further consideration in light of Carachuri-Rosendo v. Holder, " --- U.S. ----, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010). A panel of this court then held that Carachuri did not require any change in our prior holding. See United States v. Simmons, 635 F.3d 140 (4th Cir.2011). We voted to rehear the case en banc, and for the reasons that follow, we now vacate Simmons's sentence and remand for further proceedings consistent with this opinion.

I.

For first-time offenders who possess with intent to distribute at least 100 kilograms of marijuana, the Controlled Substances Act (CSA) mandates " a term of imprisonment" of at least five years. 21 U.S.C. § 841(b)(1)(B)(vii). But for offenders who engage in such conduct " after a prior conviction for a felony drug offense has become final," the CSA mandates a " term of imprisonment" of at least ten years. Id. A separate provision of the CSA defines a " felony drug offense" as a drug-related " offense that is punishable by imprisonment for more than one year under any law ... of a State." Id. § 802(44).

On August 6, 2007, a federal grand jury returned an indictment charging Simmons with three counts of marijuana trafficking under the CSA. The Government subsequently filed a Bill of Information, pursuant to 21 U.S.C. § 851, alleging that Simmons's 1996 North Carolina conviction for possession with intent to distribute marijuana constituted a predicate " felony drug" conviction triggering the ten-year statutory minimum sentence set forth in the CSA. Simmons pled guilty to the federal charges but contended that his prior North Carolina conviction could not serve as a predicate for an enhanced sentence. The district court rejected Simmons's objection to the enhancement and sentenced him to ten years' imprisonment.1 Without the disputed sentencing enhancement, Simmons's Guidelines range would have been 63-78 months.

In an unpublished opinion, we affirmed Simmons's sentence, although we acknowledged that Simmons " could not have received

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a sentence in excess of twelve months" for his North Carolina conviction. Simmons, 340 Fed.Appx. at 143. Subsequently, the Supreme Court vacated our judgment in this and a number of other cases, remanding the cases to us for reconsideration in light of Carachuri. See United States v. Thompson, No. 3:05-CR-294-2, 2010 WL 4236532, *3 (W.D.N.C. Oct. 21, 2010) (collecting cases). A panel of this Court concluded that Carachuri " does not implicate the analysis at issue in this case," 635 F.3d at 146-47, and so again affirmed the judgment of the district court. We then voted to vacate the panel opinion and rehear the case en banc.

II.

A proper analysis of Simmons's sentencing enhancement requires that we first place his prior North Carolina conviction in the context of the unique statutory regime mandated by the North Carolina Structured Sentencing Act (" the Act" ).

A.

The Act creates felony sentences strictly contingent on two factors: the designated " class of offense" and the offender's " prior record level." N.C. Gen.Stat. § 15A-1340.13(b). Both factors are established by statute. The Act, or in some cases another state statute creating the offense of conviction, specifies the class of offense. Id. § 15A-1340.17(a). The Act mandates that the sentencing judge determine an offender's prior record level by adding together the point levels (which the Act assigns) of each of the offender's prior convictions. Id. § 15A-1340.14(a)-(b). The State bears the burden of proving the existence of these prior convictions. Id. § 15A-1340.14(f).

The Act then requires the sentencing judge to match the offense class and prior record level pursuant to a statutory table, which provides three possible sentencing ranges— a mitigated range, a presumptive range, and an aggravated range. Id. § 15A-1340.17(c). The presumptive range governs unless the judge makes written findings that identify specific factors, separately designated by the Act, that permit a departure to the aggravated or mitigated range. Id. §§ 15A-1340.13(e), 15A-1340.16(c). Moreover, the Act provides that a judge may select from the aggravated range only if the State has provided a defendant thirty-days' notice of its intent to prove the necessary aggravating factors, id. § 15A-1340.16(a6), and a jury has found beyond a reasonable doubt (or the defendant has pled to) the existence of those factors, id. § 15A-1340.16(a)-(a1).

Once the judge identifies the appropriate range, the Act provides that he must choose the defendant's minimum sentence from within that range.2 Id. § 15A-1340.17(c). After the judge chooses a defendant's minimum sentence, a separate statutory chart then supplies the defendant's corresponding maximum sentence. Id. § 15A-1340.17(d), (e). The Act, unlike the Federal Sentencing Guidelines, prohibits a sentencing judge from imposing a maximum sentence higher than the one fixed by the statutory chart. Id. § 15A-1340.13(b), (c).

B.

North Carolina designates Simmons's predicate offense— possession with intent to sell no more than ten pounds of marijuana— as a Class I felony. Id. §§ 90-94, 90-95(b)(2); cf. id. § 90-95(h)(1). Under

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the Act, a Class I felony is punishable by a sentence exceeding twelve months' imprisonment only if the State satisfies two conditions. First, the State must prove (or the defendant must plead to) the existence of aggravating factors sufficient to warrant the imposition of an aggravated sentence. Id. § 15A-1340.16(a). Second, the State must demonstrate that the defendant possesses fourteen or more criminal history points, resulting in a " prior record level" of at least 5. Id. § 15A-1340.14(c)(5). If the State fails to satisfy either of these conditions, a Class I offender can never receive more than one year's imprisonment. Id. § 15A-1340.17(c)(d).

The State satisfied neither condition in this case. First, the State did not provide Simmons notice of intent to prove any aggravating factors; this foreclosed the sentencing judge from imposing an aggravated sentence. Second, because as a first-time offender Simmons possessed a " prior record level" of only 1, the Act established a minimum sentencing range of four-to-six months' community punishment (no imprisonment) and capped his maximum sentence at eight months' community punishment (again no imprisonment). Id. § 15A-1340.17(c)-(d); id. § 15A-1340.11(1)-(2). In compliance with these requirements, the state judge did not sentence Simmons to a single day of imprisonment, instead imposing only six-to-eight months' community punishment.

III.

Nevertheless, the Government correctly notes that if United States v. Harp, 406 F.3d 242 (4th Cir.2005), controls here, Simmons cannot prevail in challenging his sentence. In Harp, we held that " to determine whether a conviction is for a crime punishable by a prison term exceeding one year" under North Carolina law, " we consider the maximum aggravated sentence that could be...

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