United States v. Simmons

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 16, 2011
• Docket: 08-4475
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,  Plaintiff-Appellee, v. JASON EDWARD SIMMONS, Defendant-Appellant.  No. 08-4475

NORTH CAROLINA ADVOCATES FOR JUSTICE, Amicus Supporting Appellant.  On Remand from the Supreme Court of the United States. (S. Ct. No. 09-676) Argued: December 8, 2010 Decided: February 16, 2011 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 opin- ion, in which Justice O’Connor and Judge Duncan concurred.

COUNSEL ARGUED: Andrew Brady Banzhoff, DEVEREUX & BAN- ZHOFF, PLLC, Asheville, North Carolina, for Appellant. 2 UNITED STATES v. SIMMONS 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 WIDEN- HOUSE & FIALKO, Charlotte, North Carolina, for Amicus Supporting Appellant.

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, 130 S. Ct. 3455 (June 21, 2010). In a previous unpublished per curiam opin- ion, we concluded that our decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005), remained controlling precedent after the Supreme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 (2008). United States v. Simmons, 340 F. App’x 141 (4th Cir. 2009) (per curiam) (unpublished). We therefore affirmed the judgment of the dis- trict 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 (2010). See 130 S. Ct. 3455. Having made that consideration, we again affirm the judgment of the district court. UNITED STATES v. SIMMONS 3 I.

Simmons pled guilty, without the benefit of a written plea agreement, to three criminal counts in the United States Dis- trict Court for the Western District of North Carolina: (1) con- spiracy 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) pos- session 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 pur- suant 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) fel- ony drug offense, that conviction had been obtained in viola- tion of his Sixth Amendment right to effective counsel. The district court rejected both of Simmons’ arguments and sen- tenced Simmons to 120 months’ imprisonment on each count, to be served concurrently. 1 Section 841(b)(1)(D) provides that in a case involving possession with intent to distribute less than 50 kilograms of marijuana, "any person [who] commits such a violation after a prior conviction for a felony drug offense has become final, shall be sentenced to a term of imprisonment of not more than 10 years . . . ." 2 21 U.S.C. § 802(44) defines "felony drug offense" to be "an offense that is punishable by imprisonment for more than one year under any law . . . of a State . . . that prohibits or restricts conduct relating to . . . mari- huana . . . ." 4 UNITED STATES v. SIMMONS Simmons appealed his sentence, making the same argu- ments 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 convic- tion 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 supplemen- tal briefing and heard additional oral argument on the applica- bility 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 prece- dent in Harp is thus unaffected by that decision and continues to control the disposition of this case. 3 There is no dispute that the 1996 conviction was designated a Class I felony under North Carolina law. Under the applicable North Carolina statute, the maximum sentence for a defendant with the worst criminal his- tory convicted of a Class I felony with aggravating factors is fifteen months. The maximum sentence for a defendant with any lower criminal history or with presumptive or mitigating offense factors is less than twelve months. N.C. Gen. Stat. § 15A-1340.17(c)-(d). Simmons’ 1996 conviction resulted in a suspended sentence of six to eight months, which was within the presumptive range pursuant to the statutory sentencing structure set forth in N.C. Gen. Stat. § 15A- 1340.17(c), which took into consideration both the nature of the offense and Simmons’ criminal history. UNITED STATES v. SIMMONS 5 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 convic- tions 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 "aggra- vated 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 convic- tion 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 fel- ony" because he "could have been prosecuted" in federal 4 8 U.S.C. § 1229b(a)(3) provides that certain individuals may seek dis- cretionary relief in the form of cancellation of removal or waiver of inad- missibility if they have "not been convicted of any aggravated felony." 6 UNITED STATES v. SIMMONS 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 con- viction, 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 posi- tion would ignore the text of 8 U.S.C. § 1229b(a)(3), which requires that an individual have been "convicted of a[n] aggra- vated 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 con- crete guidance of 8 U.S.C. § 1229b(a)(3), which lim- its 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 statu- tory provisions demonstrate" that

the defendant must have been actually convicted of a crime that is itself punishable as a felony under UNITED STATES v. SIMMONS 7 federal law. The mere possibility that the defendant’s conduct, coupled with facts outside of the record of conviction, could have authorized a felony convic- tion under federal law is insufficient to satisfy the statutory command that a noncitizen be "convicted of a[n] aggravated felony" before he loses the oppor- tunity 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 defen- dant’ analysis [of Harp] and to replace it with a framework which looks at whether the defendant was actually prose- cuted" 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 hold- ing 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 term" of imprison- ment analysis under the Armed Career Criminal Act’s ("ACCA") recidivist enhancements. The Government also distinguishes Carachuri-Rosendo by pointing out "an impor- 8 UNITED STATES v. SIMMONS tant textual difference" between the statute at issue there — which required a defendant to be "convicted of a[n] aggra- vated felony" — and the statute at issue here, which requires a defendant be convicted of an offense "punishable" by more than one year of incarceration. (Appellee’s Supp. Br. 11.) Lastly, the Government posits there is a difference between the hypothetical disfavored in Carachuri-Rosendo — whether the defendant could have been prosecuted, but was not, for a particular offense — and the analysis engaged in here — whether the offense for which the defendant was actually con- victed could have provided a particular term of imprisonment.

C.

At the outset, we note that when the Supreme Court grants certiorari, vacates an opinion, and remands for further consid- eration, it makes no determination on the merits of the under- lying opinion. Instead, such an order indicates that intervening case law "may affect the outcome of the litigation" and that the intermediary appellate court should have the opportunity to fully consider the issue in light of the additional precedent. See Tyler v. Cain, 533 U.S. 656, 666 n.6 (2001) (emphasis added) (citing Lawrence v. Chater, 516 U.S. 163, 166-68 (1996) (per curiam)). After reviewing the issue anew, we are free to enter the same judgment if we "conclude that the new precedent does not require a different outcome," just as we may conclude that "the intervening precedent will result in a different outcome." Vazquez-Valentin v. Santiago-Diaz, 459 F.3d 144, 147-48 (1st Cir. 2006) (citations omitted).

Having reviewed the Supreme Court’s decision in Carachuri-Rosendo and the issues raised in the case at bar, we conclude that Carachuri-Rosendo is inapplicable to our present inquiry. That Carachuri-Rosendo involved an immi- gration proceeding, and the case sub judice concerns criminal sentencing, is a distinction, but it is not dispositive standing alone. What we find dispositive is that the plain language of the immigration statute interpreted by the Supreme Court in UNITED STATES v. SIMMONS 9 that case differs in critical respects from the statute at issue in the criminal proceeding before us. Whatever the impact of Carachuri-Rosendo in other settings, it does not compel a dif- ferent view of the plain language of § 802(44).

The inquiry in Carachuri-Rosendo was whether Carachuri- Rosendo had been "convicted of a[n] ‘aggravated felony.’" See 130 S. Ct. at 2580; see also 8 U.S.C. § 1229b(a)(3). In making that determination, the Supreme Court considered only the offense with which Carachuri-Rosendo was actually charged and convicted. See id. at 2589 ("The mere possibility that the defendant’s conduct, coupled with facts outside of the record of conviction, could have authorized a felony convic- tion 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."). In other words, because the Court was concerned with how that specific defendant was actually charged—its inquiry was necessarily defendant-specific.

In contrast, the issue before us here is whether the offense for which the defendant was convicted was "punishable" by more than one year of incarceration. 21 U.S.C. § 802(44). This case does not raise the question from Carachuri-Rosendo of whether a state court prosecutor could have charged Sim- mons differently. The specific circumstances surrounding Simmons’ conviction and the prosecutor’s charging decisions are irrelevant. We are only to evaluate the nature of Simmons’ statutorily-created offense. Thus, the inquiry in this case is offense-specific.

In order for Simmons to be subject to the enhanced sen- tencing provisions of § 841(b)(1)(D), he must have "a prior conviction for" "an offense that is punishable by imprison- ment for more than one year." Relying on Carachuri- Rosendo, Simmons contends that decision requires us to no longer examine the possible punishments under his offense of conviction, but instead to look to the specific factors support- 10 UNITED STATES v. SIMMONS ing only his 1996 conviction to determine whether he could have received a sentence of imprisonment exceeding one year. We disagree.

Simmons’ argument is contrary to the plain language of the statute defining "felony drug offense" as an "offense . . . pun- ishable by imprisonment for more than one year." Section 802(44) does not define a felony drug offense in terms of an individual defendant’s particular sentencing factors, but in terms of the statutorily-created offense. Simmons did not con- tend in the district court, in the previous appeal, or now, that other defendants identically charged and convicted under the same North Carolina statute could not have been imprisoned for more than one year. Nor could he have done so. As we explained in Harp:

In [United States v. Jones, 195 F.3d 205 (4th Cir. 1999)], we held, in the context of a felon-in- possession-of-firearm conviction, see 18 U.S.C.A. § 922(g)(1) (West 2000), that a prior North Carolina conviction was for "a crime punishable by imprison- ment for a term exceeding one year," id., if any defendant charged with that crime could receive a sentence of more than one year. See Jones, 195 F.3d at 206-07. In so doing, we reasoned:

[I]n § 922(g)(1), "punishable" is an adjec- tive used to describe "crime." As such, it is more closely linked to the conduct, the crime, than it is to the individual convicted of the conduct. Congress could have written § 922(g)(1) differently had it intended to focus on the individual in particular rather than the crime for which the individual was convicted. Instead of the phrase, "individual convicted . . . of a crime punishable by imprisonment for a term exceeding one year," Congress could have used the phrase, UNITED STATES v. SIMMONS 11 "individual punished by imprisonment for a term exceeding one year" or even "individ- ual sentenced for imprisonment for a term exceeding one year."

Id. at 207 (internal quotation marks omitted) (alter- ations in original). Thus, to determine whether a con- viction is for a crime punishable by a prison term exceeding one year, Jones dictates that we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history. See id. at 206-08.

Harp, 406 F.3d at 246. Nothing in Carachuri-Rosendo changes the fact that "punishable" in § 802(44) is an adjective modifying the "offense" of conviction, not the acts underlying a particular defendant’s case.

As we concluded in Harp, the statute requires us to exam- ine whether the statutory offense, not the particular defen- dant’s conduct, is "punishable" by more than one year of imprisonment. To do so, we look to the maximum aggravated sentence that could be imposed upon a defendant with the worst criminal history category for that offense in order to define how that offense is "punishable." Adopting Simmons’ argument would require us to rewrite the plain language of § 802(44) to define "felony drug offense" not as "an offense that is punishable by imprisonment for more than one year," but as, for example, "an offense for which the defendant is punished by imprisonment for more than one year" or "an offense for which the defendant is subject to punishment by imprisonment for more than one year." We are, of course, obliged to give effect to the statute as written and are not at liberty to rewrite it. La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 376 (1986) ("As we so often admonish, only Congress can rewrite [a] statute.").

Unlike the analysis rejected in Carachuri-Rosendo, then, the analysis required in Harp does not look to facts beyond 12 UNITED STATES v. SIMMONS the offense of conviction to determine, hypothetically, whether a defendant could have been charged with another offense that would satisfy the requirements at issue. Instead, we consider the defendant’s actual offense of conviction, and how that offense is "punishable." While the lower courts in Carachuri-Rosendo erred by looking outside the offense of conviction to construe the defendant’s actual conviction as a conviction for another offense in order to qualify as an aggra- vated felony, here we are looking at Simmons’ actual offense of conviction to determine whether that offense satisfies the statutory requirement of being "punishable by imprisonment for more than one year."

D.

Having concluded that Carachuri-Rosendo does not impli- cate the analysis at issue in this case, we turn to whether Sim- mons’ conviction is for an "offense . . . punishable for more than one year." In light of our decision in Harp,5 that inquiry is straightforward: Simmons’ 1996 conviction was a violation of N.C. Gen. Stat. § 90-95(a), which is a Class I felony. Pur- suant to N.C. Gen. Stat. § 15A-1340.17(d), the maximum sen- tence for a defendant with the worst criminal history convicted of a Class I felony with aggravating factors is fif- teen months. Thus, Simmons’ 1996 conviction is clearly for an "offense that is punishable by imprisonment for more than one year."6 Accordingly, the district court did not err in rely- 5 The statutory definition of felony drug offense in 21 U.S.C. § 802(44) is identical to the provision at issue in Harp, United States Sentencing Guidelines Manual §§ 4B1.1(a) and 4B1.2(b) ("an[ ] offense . . . punish- able by imprisonment for a term exceeding one year"), and it is indistin- guishable from the statute at issue in Jones, 18 U.S.C. § 922(g)(1) ("a crime punishable by imprisonment for a term exceeding one year"). 6 During the original appeal, we rejected Simmons’ contention that the Supreme Court’s decision in Rodriquez, which was decided after he was sentenced, implicitly overruled our decision in Harp. Nothing has tran- spired which changes our view on that issue. If anything, the Supreme Court’s analysis in Rodriquez is in harmony with the ratio decidendi of UNITED STATES v. SIMMONS 13 ing on the 1996 conviction as a basis for enhancing Simmons’ sentence under 21 U.S.C. § 841(b)(1)(D).

III.

Simmons also argues that the district court erred in failing to provide a hearing in violation of 21 U.S.C. § 851(c)(1) so he could establish that counsel in his 1996 conviction pro- vided ineffective assistance.7 However, as the Government points out, any failure to provide such a hearing would consti- tute harmless error because Simmons’ collateral attack on the prior conviction was plainly barred by the five-year statute of limitations in 21 U.S.C. § 851(e).8

The Government’s information in this case was filed on August 17, 2007. Simmons’ prior conviction occurred on Jan- uary 29, 1996, well beyond the five-year timeframe for a col- lateral challenge to the validity of that conviction. Simmons argues that he is not subject to the five-year limitation because

our prior holdings in Harp and Jones, which require the Court to "consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history." Harp, 406 F.3d at 246 (emphasis omitted) (citing Jones, 195 F.3d at 206-08 (recon- ciling the language of § 922(g)(1) "with North Carolina’s sentencing scheme by viewing the offense statutory maximum as the statutory maxi- mum for the crime, regardless of the prior criminal record status of the defendant.")). 7 Simmons alleges that his counsel’s representation at that time was con- stitutionally deficient because he erroneously informed Simmons that pleading guilty was the only way to avoid jail time when, in fact, he was only subject to probation. 8 The statute provides that No person who stands convicted of an offense under this part may challenge the validity of any prior conviction alleged under this section which occurred more than five years before the date of the information alleging such prior conviction. 21 U.S.C. § 851(e). 14 UNITED STATES v. SIMMONS he was unaware of the substantial constitutional defects in his prior conviction until consulting with counsel in the present case. Simmons fails, however, to produce authority support- ing any such notice requirement in circumstances such as these and we find none. Therefore, even if we assume Sim- mons properly requested a hearing to challenge the prior con- viction (an issue we need not decide), any error in not conducting such a hearing was harmless as a matter of law.

IV.

For the reasons set forth above we affirm the judgment of the district court.

AFFIRMED