United States v. Valdovinos

• Citation: 760 F.3d 322
• Decision Date: 25 July 2014
• Docket Number: No. 13–4768.,13–4768.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jose Ramon Solis VALDOVINOS, a/k/a Angel Victorio Mendoza, a/k/a Jose Valdavinos, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

760 F.3d 322

UNITED STATES of America, Plaintiff–Appellee,

v.Jose Ramon Solis VALDOVINOS, a/k/a Angel Victorio Mendoza, a/k/a Jose Valdavinos, Defendant–Appellant.

No. 13–4768.

United States Court of Appeals,Fourth Circuit.

Argued: May 15, 2014.

Decided: July 25, 2014.

ARGUED:Ann Loraine Hester, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Office of the United States Attorney, Asheville, North Carolina, for Appellee. ON BRIEF: Henderson Hill, Executive Director, Federal Defenders of Western North Carolina, Inc., Charlotte, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Office of the United States Attorney, Charlotte, North Carolina, for Appellee.

Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit Judge.

Affirmed by published opinion. Judge MOTZ wrote the majority opinion, in which Judge DIAZ joined. Senior Judge DAVIS wrote a dissenting opinion.

DIANA GRIBBON MOTZ, Circuit Judge:

Jose Valdovinos, a citizen of Mexico, pled guilty to unlawfully entering the United States after being deported, in violation of 8 U.S.C. § 1326(a). The district court increased Valdovinos's sentence on the ground that he illegally reentered the country after a prior North Carolina conviction for felony drug trafficking, i.e., a drug offense punishable by more than one year in prison. SeeU.S.S.G. § 2L1.2(b)(1)(B). Valdovinos challenges his sentence enhancement, arguing that this prior conviction was not punishable by more than a year in prison because he was sentenced pursuant to a plea agreement that capped his prison term at 12 months. Accordingly, he contends, the prior North Carolina conviction was not a felony for Guidelines purposes. For the reasons that follow, we affirm.

I.

Valdovinos entered the United States in November 2008 and quickly ran afoul of the law. Authorities in Mecklenburg County, North Carolina arrested him the following month on drug trafficking charges. Valdovinos pled guilty in state court to four counts of selling heroin, each a Class G felony offense under North Carolina law. SeeN.C. Gen.Stat. § 90–95(a) & (b). Because Valdovinos had no criminal record, his prior-record level was I. The state court made no findings of either aggravation or mitigation. Based on these facts, the parties agree that Valdovinos's prior conviction carried a maximum statutory sentence of 16 months in prison pursuant to North Carolina's Structured Sentencing Act (“the Act”). SeeN.C. Gen.Stat. § 15A–1340.17(c) & (d) (codifying North Carolina sentencing scheme) (version effective until November 2009).¹

But Valdovinos was sentenced pursuant to a plea agreement that, upon acceptance by the court, established a binding sentencing range of 10 to 12 months' imprisonment. Under state law, once the trial judge accepted the plea, the judge had to sentence Valdovinos within the agreement's recommended range. SeeN.C. Gen.Stat. § 15A–1023(b) (codifying role of sentencing judge in plea arrangements relating to sentence). Of course, the judge remained free to reject the recommended range along with Valdovinos's guilty plea. See id. But in this case the judge elected to accept the agreement and accordingly sentenced Valdovinos to 10 to 12 months in prison. In January 2010, after serving his sentence, Valdovinos was removed to Mexico.

In May 2013, Valdovinos reentered the United States without permission and returned to North Carolina. He was arrested a few weeks later for resisting a public officer, and charged with illegal reentry by a removed alien in violation of 8 U.S.C. § 1326(a). He pled guilty to the charge.

In preparation for Valdovinos's sentencing, a probation officer prepared a presentence report calculating Valdovinos's recommended term of imprisonment for this reentry conviction. The probation officer recommended a base offense level of 8 and a 12–point enhancement on the ground that Valdovinos had previously been convicted of a “felony drug trafficking offense,” i.e., his 2009 North Carolina conviction for selling heroin. SeeU.S.S.G. § 2L1.2(b)(1)(B). After a 3–point reduction for acceptance of responsibility, Valdovinos's total recommended offense level was 17. Combined with a criminal history category of II, this offense level produced a Guidelines range of 27 to 33 months' imprisonment.

Valdovinos objected to the felony drug-offense enhancement. He noted that under the Guidelines, a “felony” is “any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” U.S.S.G. § 2L1.2 cmt. n. 2. Valdovinos argued that because his guilty plea to the prior North Carolina conviction was entered as part of an agreement that capped his sentence at 12 months once the court accepted his plea, that conviction was not punishable by more than one year in prison. Consequently, he maintained, his prior conviction for selling heroin did not constitute a felony under the Guidelines and so could not serve as a predicate offense to enhance his federal sentence for illegal reentry.

The district court rejected the argument. It recognized that the plea agreement reduced Valdovinos's prior North Carolina sentence. The court found, however, that this did not alter the fact that the offense was punishable by imprisonment exceeding one year because the maximum statutory penalty of 16 months remained unchanged. The court therefore applied the enhancement and sentenced Valdovinos to 27 months in prison. This appeal followed.

II.

Valdovinos contends that the district court erred in enhancing his sentence on the basis of his prior state conviction. As he argued in the district court, Valdovinos again claims that, due to his plea agreement, his North Carolina conviction was not punishable by more than a year in prison and therefore does not qualify as a felony under Section 2L1.2(b)(1)(B) of the Guidelines. We review de novo the question whether a prior state conviction constitutes a predicate felony conviction for purposes of a federal sentence enhancement. United States v. Jones, 667 F.3d 477, 482 (4th Cir.2012).

A.

Our approach to determining whether a prior North Carolina conviction was punishable by a prison term exceeding one year (and thus constitutes a federal sentencing predicate) has changed in recent years. We once answered that question by considering “the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.” United States v. Harp, 406 F.3d 242, 246 (4th Cir.2005). As a result, many defendants who, based on their own criminal histories, could not possibly have been sentenced to prison for more than a year were deemed to have been convicted of predicate felonies and so sentenced to enhanced federal prison terms. We faithfully followed that precedent in numerous cases, including United States v. Simmons, 340 Fed.Appx. 141 (4th Cir.2009).

In 2010, however, the Supreme Court decided Carachuri–Rosendo v. Holder, 560 U.S. 563, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010). The Court held in Carachuri that, for purposes of the Immigration and Nationality Act, a prior conviction constitutes an “aggravated felony”—i.e., a crime for which the maximum term of imprisonment exceeds one year—only if the defendant was “ actually convicted of a crime that is itself punishable as a felony under federal law.” Id. at 582, 130 S.Ct. 2577. The Court explained that whether the defendant's conduct underlying his prior conviction hypothetically could have received felony treatment is irrelevant. See id. at 576–81, 130 S.Ct. 2577. The critical question is simply whether he was convicted of an offense punishable by more than one year in prison.

The Supreme Court then vacated our judgment in Simmons and remanded the case to us for “further consideration in light of Carachuri–Rosendo.” See561 U.S. 1001, 130 S.Ct. 3455, 177 L.Ed.2d 1048 (2010). On remand, we recognized that, although Carachuri arose in the immigration context, its rationale undercut our use of “an imagined worst-case offender” to calculate a defendant's maximum term of imprisonment for a prior conviction. United States v. Simmons, 649 F.3d 237, 249 (4th Cir.2011) (en banc). Accordingly,we held that a defendant's prior North Carolina conviction was punishable by imprisonment exceeding one year (and thus a federal sentencing predicate) only if the particular defendant's crime of conviction was punishable under North Carolina law by a prison term exceeding one year. Id.

Valdovinos contends that Carachuri and Simmons support his argument that his prior conviction for selling heroin does not constitute a felony under the Guidelines. In particular, he seizes on the instruction in those cases that a court must “look to the conviction itself as [its] starting place” when considering whether a prior conviction qualifies as a federal sentencing predicate. Carachuri, 560 U.S. at 576, 130 S.Ct. 2577; accord Simmons, 649 F.3d at 242. Valdovinos argues that because the state court could not have imposed a sentence greater than 12 months once it accepted his guilty plea—that is, once Valdovinos was convicted of his drug offense—this conviction was not punishable by imprisonment exceeding one year. Appellant's Br. at 12–13. Accordingly, Valdovinos claims that his prior North Carolina conviction is not a felony under Carachuri and Simmons because “[t]here was no point when [his] conviction exposed him to a sentence greater than one year's imprisonment.” Reply Br. at 8.

Valdovinos's argument is clever, but unpersuasive. North Carolina's unique sentencing regime, not a plea agreement, determines whether a defendant's conviction is punishable by imprisonment exceeding one year and so qualifies as a federal sentencing predicate. Simmons, 649 F.3d at 240.

B.

North Carolina's Structured Sentencing Act “creates felony sentences strictly contingent on two factors: the designated ‘class of offense’ and the offender's ‘prior...