United States v. Powell

• Decision Date: 20 August 2012
• Docket Number: No. 11–6152.,11–6152.
• Citation: 691 F.3d 554
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Troy Naman POWELL, a/k/a Troy Norman Powell, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

691 F.3d 554

UNITED STATES of America, Plaintiff–Appellee,

v.Troy Naman POWELL, a/k/a Troy Norman Powell, Defendant–Appellant.

No. 11–6152.

United States Court of Appeals, Fourth Circuit.

Argued: May 18, 2012.

Decided: Aug. 20, 2012.

ARGUED:Milton Gordon Widenhouse, Jr., Rudolf, Widenhouse & Fialko, Chapel Hill, 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, Charlotte, North Carolina, for Appellee.

Before WILKINSON, NIEMEYER, and KING, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge WILKINSON joined. Judge KING wrote an opinion dissenting in part and concurring in the judgment in part.

OPINION

NIEMEYER, Circuit Judge:

In 2004, Troy Powell was convicted of conspiracy to possess with intent to distribute at least 5 kilograms of cocaine and at least 50 grams of crack cocaine, in violation of 21 U.S.C. § 846, and he was sentenced to 240 months' imprisonment. The sentence imposed was an enhanced mandatory minimum sentence based on Powell's prior North Carolina drug conviction. The maximum sentence that could have been imposed for the violation, regardless of the enhancement for the prior offense, was life imprisonment. See id. § 841(b)(1)(A).

Almost six years later, Powell filed this motion under 28 U.S.C. § 2255, seeking to vacate his sentence in light of the Supreme Court's 2010 decision in Carachuri–Rosendo v. Holder, ––– U.S. ––––, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010), which held that the question of whether a prior conviction is an “aggravated felony” as used in the Immigration and Nationality Act (“INA”) must be resolved by looking at the offense for which the defendant was actually convicted, not the offense for which he could have been convicted in view of his conduct. Powell argues that Carachuri should be applied retroactively as a new substantive rule to invalidate the use of his prior North Carolina conviction, which the district court found was a felony conviction and thus could be used to enhance his 2004 sentence under 21 U.S.C. § 841(b). He explains that Carachuri should be applied in the manner that we applied it in United States v. Simmons, 649 F.3d 237, 243–45 (4th Cir.2011) (en banc) (applying Carachuri to invalidate a sentence enhanced under the Controlled Substance Act based on a prior conviction punished under North Carolina's structured sentencing scheme). Powell contends that his § 2255 motion is timely based on 28 U.S.C. § 2255(f)(3), which authorizes the filing of a § 2255 motion within one year after the Supreme Court recognizes a new right that has been made retroactively applicable to cases on collateral review.

The district court denied Powell's motion, holding, among other things, that no court had held that Carachuri applied retroactively to cases on collateral review.

For the reasons that follow, we affirm.

I

Powell pleaded guilty in 2004 to conspiracy to possess with intent to distribute at least 5 kilograms of cocaine and at least 50 grams of crack cocaine, subjecting him to a mandatory minimum sentence of 10 years' imprisonment and a maximum sentence of life imprisonment. In sentencing Powell, the district court calculated his Guidelines range to be a sentence between 108 and 135 months' imprisonment. Considering, however, Powell's 1999 conviction in North Carolina state court for possession of marijuana with intent to distribute and concluding that it was a “felony drug offense”—one that potentially subjected Powell to a sentence exceeding one year—the court enhanced Powell's sentence to the mandatory minimum term of 20 years' imprisonment, as provided by 21 U.S.C. § 841(b)(1)(A). While the record shows with respect to Powell's prior conviction that North Carolina had sentenced Powell to a term of six to eight months' imprisonment, it does not reveal what the maximum sentence could have been inasmuch as there is no evidence in the record that demonstrates whether Powell's offense was an aggravated one or whether he had a criminal history, at least one of which would have been necessary to subject Powell to the possibility of a sentence exceeding one year. SeeN.C. Gen.Stat. § 15A–1340.17(c) (1999).

After the Supreme Court decided Carachuri, our court decided Simmons, where we overruled prior decisions and held that, in deciding whether to enhance federal sentences based on prior North Carolina convictions, we look not to the maximum sentence that North Carolina courts could have imposed for a hypothetical defendant who was guilty of an aggravated offense or had a prior criminal record, but rather to the maximum sentence that could have been imposed on a person with the defendant's actual level of aggravation and criminal history. See Simmons, 649 F.3d at 241.

Within one year after Carachuri was decided, Powell filed this § 2255 motion to vacate his sentence, contending that in light of Carachuri and Simmons, the district court had erroneously enhanced his sentence under 21 U.S.C. § 841(b)(1)(A), based on its finding that his prior North Carolina drug offense qualified as a “felony drug offense.”

The district court dismissed Powell's motion as untimely. Noting that his motion must be filed within one year after the Supreme Court has recognized a new right that has been made “retroactively applicable to cases on collateral review,” the district court concluded that Powell could not show that any court had held that “Carachuri is retroactive on collateral review.”

From the district court's January 4, 2011 order dismissing his § 2255 motion, Powell filed this appeal.

II

Section 2255 of Title 28 authorizes motions based on a defendant's claim that, among other things, the defendant's “sentence was imposed in violation of the Constitutionor laws of the United States ... [or] was in excess of the maximum authorized by law.” Such motions must be filed within one year of the defendant's judgment of conviction or, as applicable here, within one year of

the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.

28 U.S.C. § 2255(f)(3).

Powell contends that his § 2255 motion satisfies the conditions of § 2255(f)(3) because Carachuri recognized a new substantive right, which should be retroactively applied to his motion. He argues that Carachuri recognized a new right that prohibits use of his 1999 North Carolina conviction to enhance his 2004 sentence and that, because he “received a punishment [in 2004 that] the law could not impose on him,” the rule in Carachuri is substantive. See Schriro v. Summerlin, 542 U.S. 348, 353, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (noting that a rule is substantive rather than procedural if it “alters ... the class of persons that the law punishes”).

The government contends that Carachuri is a civil case construing the INA and that its holding is not a rule of criminal law that narrowed the class of persons who can be punished by the criminal law. Moreover, according to the government, if Carachuri did create a new rule, it was merely a procedural rule indicating the process by which lower courts should determine whether a prior conviction constituted an “aggravated felony” for the purposes of the INA. It argues that Carachuri “did not narrow the construction of a criminal statute, but rather, at most, made clear what must be evident on the face of the record before considering a prior conviction to have been a recidivist conviction.” The government maintains that while our decision in Simmons, which applied the interpretive principles applied in Carachuri, may have announced a new substantive rule of criminal law, Carachuri itself did not. Finally, it asserts that in this case, even Simmons does not indicate that in 2004 Powell “face[d] a punishment that the law [could not] impose,” Schriro, 542 U.S. at 352, 124 S.Ct. 2519, because regardless of whether the prior North Carolina conviction qualified as an enhancing conviction under 21 U.S.C. § 841(b)(1)(A), Powell faced the same maximum sentence of life imprisonment.

The principles governing whether a new right is retroactively applicable to cases on collateral review are well settled. The chief objective of federal collateral review is to ensure that “trial and appellate courts throughout the land ... conduct their proceedings in a manner consistent with established [legal] standards.” Teague v. Lane, 489 U.S. 288, 306, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion) (quoting Desist v. United States, 394 U.S. 244, 262–63, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting)). Consistent with this goal, collateral review is ordinarily available to “correct violations of long-established ... rights,” but not to overturn the outcome in cases where the trial judge and jury “faithfully appl[ied] existing ... law.” Engle v. Isaac, 456 U.S. 107, 128 n. 33, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Stated differently, well-established legal rules—old rules—are applicable on collateral review, while new rules generally are not. Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007).

Nonetheless, Teague and its progeny have identified two exceptional situations in which new legal rules ought to be applied retroactively. Lambrix v. Singletary, 520 U.S. 518, 527, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997). The first allows for the retroactive application of new substantive rules. See Schriro, 542 U.S. at 351, 124 S.Ct. 2519 (explaining that new substantive rules, unlike new procedural rules, “generally apply retroactively” on collateral review). “A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes.” Id. at 353, 124 S.Ct. 2519. By contrast, a rule is procedural if it...