United States v. Stone

• Decision Date: 10 July 2015
• Docket Number: No. 3:14–cr–00263–FDW.,3:14–cr–00263–FDW.
• Citation: 116 F.Supp.3d 680
• Parties: UNITED STATES of America, Plaintiff, v. Desmond Marquis STONE, Defendant.
• Court: U.S. District Court — Western District of North Carolina

116 F.Supp.3d 680

UNITED STATES of America, Plaintiff,

v.Desmond Marquis STONE, Defendant.

No. 3:14–cr–00263–FDW.

United States District Court, W.D. North Carolina, Charlotte Division.

Signed July 10, 2015.

Robert John Gleason, William A. Brafford, U.S. Attorney's Office, Charlotte, NC, for Plaintiff.

Erin Kimberly Taylor, Federal Defenders of Western North Carolina, Charlotte, NC, for Defendant.

ORDER

FRANK D. WHITNEY, Chief Judge.

THIS MATTER is before the Court on Defendant's Motion to Dismiss his indictment charging two counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). (Doc. No. 11). Defendant Stone argues that, under North Carolina's statutory sentencing scheme, he has no prior conviction for which he could have received a term of imprisonment exceeding one year, and thus, his criminal record contains no predicate felony for purposes of § 922(g)(1). Defendant, however, has a prior 2012 North Carolina conviction for Felony Larceny, for which he received a sentence of imprisonment of 5–15 months. See Judgement, Def. Ex. 1. Stone argues that this conviction does not qualify as a § 922(g)(1) predicate because the last nine months of his sentence were to be served on "post-release supervision," which he claims is not part of his term of imprisonment. The Court disagrees, and accordingly DENIES Defendant's Motion to Dismiss.

I. FACTS

A. North Carolina Structured Sentencing and the Justice Reinvestment Act

The Fourth Circuit has summarily explained the practicalities of North Carolina structured sentencing:

North Carolina's Structured Sentencing Act creates felony sentences strictly contingent on two factors: the designated "class of offense" and the offender's "prior record level." [See N.C. Gen.Stat. § 15A–1340.13(b) ]. The sentencing judge calculates the offender's prior record level by adding together the points, assigned by the Act, for each of the offender's prior convictions. N.C. Gen.Stat. § 15A–1340.14(a). The judge then matches the offense class and prior record level using a statutory table, which provides three sentencing ranges—a mitigated range, a presumptive range, and an aggravated range. Id. § 15A–1340.17(c). The judge must sentence the defendant within the presumptive range unless the judge makes written findings of aggravating or mitigating factors.Id. §§ 15A–1340.13(e) & 15A–1340.16(c). And the judge may sentence a defendant within the aggravated range only if the state provides the defendant notice of its intent to prove aggravating factors, and the jury finds such factors beyond a reasonable doubt or the defendant pleads to their existence. Id. § 15A–1340.16 (a6). Once the judge selects the applicable range, the judge must choose the defendant's minimum sentence from within that range; a separate statutory chart provides the corresponding maximum term. Id. § 15A–1340.17(d).

United States v. Valdovinos, 760 F.3d 322, 326 (4th Cir.2014) (internal quotation marks omitted).

In 2011, North Carolina passed the Justice Reinvestment Act ("JRA"). See 2011 N.C. Sess. Laws 2011–192 (codified as N.C. Gen.Stat. § 15A–1368 et seq. ). Among other things, the JRA increased the applicable maximum sentences for certain classes of felonies. For example, a 2009 conviction with a minimum sentence of 5–6 months had a corresponding maximum of 6–8 months. The JRA raised that corresponding maximum to 15–17 months. Compare N.C. Gen.Stat. § 15A–1340.17 (2009)with N.C. Gen.Stat. § 15A–1340.17 (2013). As of the effective date of the JRA, all felony offenses in North Carolina now have a maximum possible punishment of more than one year in prison—the lowest available maximum sentence on the structured sentencing grid is thirteen months. See N.C. Gen.Stat. § 15A–1340.17(c) –(d) (containing the punishment for a Class I, Level I, mitigated range felony). While neither the sentencing charts nor the language of the judgment mention it, N.C. Gen.Stat. § 15A–1368.2 assumes that all defendants "shall be released from prison for post-release supervision on the date equivalent to [their] maximum imposed prison term ... less nine months in the case of Class F through I felons...." Id. § 15A–1368.2(a) (emphasis added).¹ A prisoner cannot refuse post-release supervision. Id. § 15A–1368.2(b). "When a supervisee completes the period of post-release supervision, the sentence or sentences from which the supervisee was placed on post-release supervision are terminated." Id. § 15A–1368.2(f).

B. Defendant Stone's Criminal History

The JRA's increased sentences applied to Defendant Stone, who committed Felony Larceny on or about March 27, 2012. See Valdovinos, 760 F.3d at 324, n. 1 (noting that the JRA became effective in December 2011). Defendant's offense of conviction was a Class H felony, combined with a Prior Record Level I, which resulted in a maximum presumptive sentencing range of 5–17 months and an actual sentencing range of 5–15 months.² The text of the judgment, which is of critical importance today, stated in full:

The Court, having considered the evidence, arguments of counsel and statement of defendant, Orders that the above offenses, if more than one, be consolidated for judgment and the defendant be imprisoned for a minimum term of 5 months for a maximum term of 15 months in the custody of the N.C. DAC.

Judgment, Def. Ex. 1 (emphasis added).

On December 17, 2014, a federal grand jury indicted Defendant Stone on two counts of violating 18 U.S.C. § 922(g)(1), commonly known as Possession of a Firearm by a Felon. One of the elements of this offense requires that on the date of offense, the defendant must have "been convicted in any court of a crime punishable by imprisonment for a term exceeding one year." 18 U.S.C. § 922(g)(1). The fundamental issue for the Court today is whether Defendant's state sentence qualifies as a predicate federal felony for § 922(g)(1) purposes. Defendant Stone argues that he did not incur a predicate felony in 2012, because his underlying sentence was comprised of two separate components—a six-month period of time spent in jail and a nine-month period of post-release supervision. Therefore, according to him, his felony larceny conviction resulted in a term of imprisonment of less than twelve months, which he argues makes his § 922(g)(1) conviction legally impossible. He would have the Court hold that the nine months spent on post-release supervision do not count towards a "term of imprisonment" for federal purposes; in other words, only the time spent living as an inmate in physical confinement (e.g., prison, penitentiary, jail, correctional facility, etc.) can be considered when calculating a defendant's maximum term of imprisonment. The Court disagrees with Defendant's argument for the reasons that follow.³

II. ANALYSIS

A. Applicable Precedent

The Court begins its analysis with a chronological discussion of the applicable case law from this Circuit, which establishes the context in which the Court decides the distinct issue Stone's case presents. Today's outcome closely follows and relies on important principles animating previous Fourth Circuit decisions.

1. United States v. Simmons

Prior to 2011, this Circuit's standard for determining whether a prior North Carolina conviction was punishable by a prison term exceeding one year focused on "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). A panel of the Fourth Circuit originally decided United States v. Simmons, 635 F.3d 140 (4th Cir.)on reh'g en banc, 649 F.3d 237 (4th Cir.2011), under this framework. However, after the Supreme Court's decision in Carachuri–Rosendo v. Holder, 560 U.S. 563, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010), the Fourth Circuit, sitting en banc in Simmons, overruled Harp, holding that Carachuri–Rosendo's "rationale precluded the use of ‘an imagined worst-case offender’ to calculate a defendant's maximum term of imprisonment for a prior conviction." Valdovinos, 760 F.3d at 325 (quoting United States v. Simmons, 649 F.3d 237, 249 (4th Cir.2011) ). The en banc Simmons decision held that, when calculating the defendant's maximum punishment, hypothetical aggravating factors could not be considered. Simmons, 649 F.3d at 244. Determination of the maximum punishment

requires the examination of three pieces of evidence: the offense class, the offender's prior record level, and the applicability of the aggravated sentencing range. All three appear prominently on the first page of an offender's state record of conviction. See N.C. Forms AOC–CR–601, AOC–CR–603. From this, it is a simple matter to refer to the statutory table provided by the Structured Sentencing Act and compute the applicable maximum punishment.

Id. at 247 n. 9 (emphasis added).

"Simmons's instructions ensures that offenders with similar criminal backgrounds who commit similar crimes will be sentenced to similar prison terms." Valdovinos, 760 F.3d at 328. The state sentence in Simmons authorized a maximum sentence of only eight months' community punishment. Id. at 241. Had the Government proved the existence of aggravating factors and demonstrated that Simmons possessed fourteen or more criminal history points, Simmons could have received an aggravated sentence of more than twelve months' imprisonment.Id. The Government did neither.

Stone's situation tells quite a different story than that of Simmons. The pervasive issue in Simmons was whether a hypothetical aggravation of a defendant's non-aggravated felony conviction could in turn serve as the basis for a predicate felony under § 922(g)(1). Facially, Simmons' sentence contained no physical confinement. Stone's sentence, based on the three Simmons factors, carried a maximum term of imprisonment of fifteen months, on its face, without any additional findings of aggravation or recidivism needed. Unlike Simmons or Carachuri–Rosendo, Stone's case does not require the...