471 F. App'x 136
4th Cir.2012Background
- Carter was convicted in 2006 of possession with intent to distribute cocaine and possession of a firearm by a felon, and was designated a career offender under § 4B1.1, with concurrent 262- and 120-month sentences.
- This court affirmed the district court’s judgment, and the mandate was recalled; Carter moved for panel and en banc rehearing based on Simmons.
- Simmons holds that the relevant NC offense’s status as a felony for the purposes of § 4B1.1 is determined by the maximum sentence actually possible given the defendant’s history, not the worst possible history.
- Although state records were not in the record, the indictment, 851 notice, and PSR indicated three NC cocaine-related convictions as felonies, but the actual sentences imposed suggest a maximum of 12 months for each under NC law.
- Under Simmons, these three prior NC convictions were not offenses punishable by more than one year, and thus could not support a federal felon-in-possession conviction or a career-offender designation.
- The panel reversed Carter’s felon-in-possession conviction, affirmed the cocaine distribution conviction, vacated and remanded for resentencing, and denied en banc relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Carter’s NC convictions qualify as felonies under § 4B1.1 after Simmons | Carter’s three NC convictions are felonies under 4B1.1 | Simmons requires examining actual maximums given history; these may not exceed one year | Conviction reversed; NC priors not qualifying felonies |
| Whether Simmons applies to reevaluation on rehearing | Simmons mandates reclassification of prior felonies | Simmons does not require broader reanalysis beyond the record | Simmons applied on rehearing to reclassify prior offenses |
| Whether Carter’s designation as a career offender is supported | Prior NC convictions cannot support career offender | The district court precedent could sustain career offender under prior law | Not supported; career-offender designation vacated |
| Whether the felon-in-possession conviction should be vacated | Fell under Simmons’ reinterpretation of felonies | Conviction should stand unless supported by valid predicates | Felon-in-possession conviction reversed |
| What is the appropriate remedy on remand | Resentencing consistent with Simmons | Preserve existing sentence where valid | Remanded for resentencing; cocaine-distribution sentence affirmed originally |
Key Cases Cited
- Simmons v. United States, 649 F.3d 237 (4th Cir. 2011) (determine if NC offenses are punishable by >1 year by actual maximums given history)
- Harp v. United States, 406 F.3d 242 (4th Cir. 2005) (looked at maximum aggravated sentence for worst history; overruled by Simmons)