*1 any Given that there denied involvement. identifying strong evidence Franklin Wyatt’s one who fired the shots at
as the
vehicle, in the we find that error ad- would not have had
mission of the evidence injurious effect on the substantial
jury’s verdict.
AFFIRMED. IN PART
CONCURRING
RYAN, Judge, concurring Circuit
part.
I concur in conclusion that the dis- denying peti-
trict court did not err in relief,
tioner habeas but for the rea- my
son stated in Part II.C. brother’s
opinion, analysis. the harmless error America,
UNITED STATES
Plaintiff-Appellee, PRUITT, Defendant-Appellant.
Samson
No. 06-6002. Appeals,
United States Court of
Sixth Circuit.
Argued: June 2008.
Decided and Filed: Oct.
OPINION ROGERS, Judge. Circuit In determining apply whether provision career offender of the United Guidelines, Sentencing States must federal court take into account the defen- (or history dant’s state criminal lack there- of) at of his predicate the time North yes, Carolina convictions? The is answer given particular characteristics of law, light prec- recent United States edent. pleading guilty
After to one count of firearm, being possession of a felon § 922(g), violation of 18 U.S.C. and one manufacturing marijuana, count of in viola- 841(a)(1), tion of U.S.C. defendant Samson Pruitt was sentenced to 262 imprisonment. During months’ sentenc- ing, the district court determined that qualified as career offender under Sentencing Guidelines United States prior drug on the basis of two convictions that Pruitt had sustained North Car- olina, and for which Pruitt was sentenced year. for less than one Jelovsek, B. Johnson ARGUED: Sandra conviction to as a For Tennessee, Appellant. Perry for H. City, guide- predicate under the career offender Attorney, Piper, Assistant United States line, the offense of con- U.S. S.G. Tennessee, Chattanooga, Appellee. for “punishable by been viction must have Jelovsek, BRIEF: B. Johnson ON Sandra imprisonment for a term exceed- death or Tennessee, City, Appellant. Perry for H. § 4B1.2 cmt. n. 1. year.” U.S.S.G. Attorney, Piper, Assistant United States structured Under North Carolina’s Tennessee, Robert M. Chattanooga, scheme, punish- the maximum Reeves, Attorney, Assistant United States Pruitt’s offenses Greeneville, Tennessee, ment authorized for Appellee. for on Pruitt’s state depended of conviction MERRITT, MOORE, Before: at time of each “prior law record level” ROGERS, Judges. Circuit conviction. See N.C. Gen. St. 15A-1 340.17(c)-(d). determining whether J., ROGERS, opinion delivered the qualified pred- Pruitt’s court, MOORE, J., joined. which icates, court did not consider the district MERRITT, 426-31), (pp. J. delivered level, rather con- but separate dissenting opinion. count, respect 922(g) maximum sentence allowable With sidered the report calculated a base offense level of defendant with the hypothetical prior felony Pruitt had two con- this was because record level. Because worst This base of- error, trolled substance convictions. Pruitt’s sentence must *3 procedural by two fense level was increased levels and his case remanded for re- be vacated firearms, Pruitt possessed because three sentencing. resulting in an level of 26. offense With I. 841(a)(1) count, § respect pre- the report calculated an offense level sentence 2005, 23, federal and state On June grouping guidelines of 16. Under the on information received agents, acting rules, yielded a combined this total offense sources, executed a search from various However, Pruitt level of 26. because had Upon entering home. warrant at Pruitt’s previously been convicted of two felo- residence, large found a indoor the officers ny controlled substance offenses in North marijuana operation. The search growing Carolina, presentence report the concluded in an yielded also three firearms located that Pruitt a under career offender 1,400 upstairs closet and over rounds of result, § a U.S. S.G. 4B1.1. As Pruitt’s ammunition. After the officers read Pruitt adjusted upward offense level was to 37. Miranda rights, his Pruitt admitted that adjustment a three-level downward With previously he had been of convicted acceptance report for of the responsibility, marijuana charges, that he mar- owned the settled on an offense of Due to level 34. ijuana regular and that he was a operation, offender, his status as a career Pruitt’s marijuana user of and cocaine. history category was calculated to 1, 2005, July signed Pruitt a written On be VI. With the offense level of this plea agreement agreed and an factual ba- yielded advisory an guidelines of growing sis in which he admitted to an imprisonment. 262-327 months’ marijuana amount in excess plants possessing and to the three fire- receiving presentence report, After the plea arms found his home. Under the objection Pruitt filed an to its career of- agreement, agreed plead guilty Pruitt to to fender determination. Pruitt asserted being possession one count of a felon upon convictions relied firearm, in violation of 18 U.S.C. report predicates did not 922(g)(1), § and to one of manufac- count § under 4B1.1 because those turing marijuana, in violation of 21 U.S.C. “punishable” by were not for offenses 841(a)(1). § pled guilty Pruitt later imprisonment exceeding year. term of open July counts in court on both 10, 2006, July On the district court entered entry guilty plea, Prior to of Pruitt’s objec- overruling a written order Pruitt’s court, government open pursuant filed concluding tion and that the relevant 851(a), § an giv- U.S.C. information qualifying offenses conviction were ing of its notice intent to seek increased predicates. The court district reasoned punishment U.S.C. that the relevant North Carolina sentenc- 841(b)(1)(B), § on the basis that Pruitt had up statute authorized a sentence of previously felony drug been convicted of imprisonment 15 months’ for Pruitt’s offenses. conviction, offenses of and that Pruitt’s
The probation department prepared particular prior record level at the time of presentence report detailing expo- analy- each conviction was irrelevant to the sentencing guidelines. sure under sis. 17, 2006, proscribes selling, manufacturing, the district court held deliver- July
On sell, hearing. accepting ing, possessing After or with intent to man- ufacture, deliver, pre- a controlled advisory calculations substance. guidelines 90-95(b)(2), report, including application Under Pruitt’s conduct with enhancement, respect offender punishable of the career to both convictions was to a total term of felony. many court sentenced as a Class I Unlike substan- statutes, months however, 262 months’ tive criminal rele- —120 922(g) for the count and 262 months vant provisions prescribe of 90-95 do not 841(a) count, concurrently. to run statutory maximum punishment for the *4 Rather, offense. maximum punish-
II.
by
ment
is determined
reference to the
felony sentencing
the district court did not ac-
structured
Because
scheme set
§
prior
for Pruitt’s
record level under
out N.C. Gen. St.
15A-1340.17.
count
in determining
law
wheth-
15A-1340.17,
§
Under
unless otherwise
prior
er Pruitt’s two
North Carolina con-
provided in
prescribing
specific
a statute
a
by ...
“punishable
imprison-
victions were
punishment,
statutory
maximum sen-
exceeding
year,”
ment for a term
one
any given felony
tence for
offense is de-
and re-
Pruitt’s sentence must be vacated
(1)
rived based on two factors:
the defen-
manded.
In the context of North Car-
“prior
dant’s
record level” as calculated
scheme,
an
olina’s structured
(2)
law;
under state
ag-
and
whether the
“punishable”
conviction is
for a
offense of
gravated, presumptive,
mitigated
or
sen-
exceeding
year only
term
one
if the state
tencing
applies.
§
See
15A-
hypothetical
have
a
court could
sentenced
1340.17(c)-(d).
prior
The defendant’s
rec-
defendant with the same
record level
(I-VI)
generally
by
ord level
is
determined
as the defendant’s
record level to a
“calculating
points assigned
the sum of the
year.
exceeding
term
each of the
convic-
[defendant’s]
§
Under U.S.S.G.
a defendant
15A-1340.14(a).
§
tions.” N.C. Gen. St.
if,
qualifies
among
as a career offender
A
presumptive range
sentence outside the
things,
other
“the defendant has at least
permissible if
that
is
the court determines
prior felony
two
convictions of either a
an aggravated
mitigated
sentence is
crime of violence or
controlled substance
justified
light
of the facts and circum-
4Bl.l(a).
turn,
§
§
In
4B1.2
offense.”
15A-1340.17(c)(3)-
stances of the case.
“prior felony
defines
conviction” to mean
(4). At the time of Pruitt’s two convic-
adult federal or state conviction tions,
judi-
permitted
North Carolina law
by
punishable
for an offense
death or
fact-finding
aggravating
cial
factors
exceeding
term
one necessary
impose
aggravated
sen-
year,
regardless whether such offense
Lucas,
568,
tence. See State v.
353 N.C.
specifically designated
is
as a
(2001)
712,
(defining the
548 S.E.2d
731
regardless of the actual sentence im-
statutory
Apprendi purposes
maximum for
posed.
aggravated sentencing
to include the
2005, however,
range).
following
4B1.2 cmt. n.
The district court
296,
Blakely Washington,
Pruitt a career
on the
v.
542 U.S.
124
deemed
offender
2531,
(2004), the
of two
convictions that Pruitt
S.Ct.
“ range in the North Carolina presumptive the standard a sentence outside ‘impose finding analogous ‘that there that Pruitt range’ upon a faced sentence scheme range reasons compelling sentencing guideline substantial the standard [were] ” Id. exceptional justifying an sentence.’ maxi- in And the Rodriquez. described 9.94A.120(2) Rev.Code (quoting Wash. the aggravated mum sentence under ultimately (1994)). as the scheme served statutory provi- that the recidivism held judge “statutory maximum” because determining could be accounted for sion that above impose not could au- imprisonment term the maximum maximum. But the Court for the offense.
thorized
the defendant’s contention
rejected
argument,
Pruitt’s third and final
guide-
however,
of the standard
top
The district court
has merit.
should instead be considered
line
failing
to account for
erred
imprisonment.
“maximum term” of
predicate
level at the time of his
record
Washington
noting
After
Id.
those
determining whether
convictions
operation
at the time of
scheme
qualified
predicates
as
prior convictions allowed
defendant’s
discussed,
maximum sen
4B1.1. As
adjust
sentencing judge to
a sentence
authorized for a
de
tence
Class
up to
sentencing range
the standard
above
of each
pends on the
record level
by the
maximum sentence authorized
A
has a
defendant.
defendant who
statutes,
con-
the Court
relevant
of less than
sentenced
V cannot be
of “maximum”
concept
cluded
imprisonment exceeding
to a term
understood
term of
is better
is
regardless of whether he or she
year,
pre-
to “the maximum term
referring
presumptive,
in the aggravated,
sentenced
statute,
by the relevant criminal
scribed
The use of
mitigated sentencing range.
guideline
of a
top
in the de
a defendant’s
record level
Id.
range.”
of a
sentence re
termination
maximum
vary a
legislative judgment
a clear
flects
Though the criminal
at issue
statute
*7
on
sentencing exposure
defendant’s
based
prescribe
does not
a statu-
this case
itself
history.
imposi
criminal
And unlike the
term
Rod-
tory
imprisonment,
maximum
of
sentence,
deter
aggravated
tion of an
the
remains instructive.
North
riquez
Under
level was
law,
prior
mination of Pruitt’s
record
possible
faced
Carolina
of
a matter left to the wide discretion
ag-
the
presumptive
tence above
Thus,
Still,
under the
judge.1
the
gravating factors were found.
scheme, a
adjustment
not exceed the North Carolina
defendant’s
upward
could
Thus,
history
the
has a
effect on
aggravated range.
significant
criminal
top
above,
(2)
prior
supervision,
serving
noted
defendant's
record
release
or
As
“calculating
generally
by
imprisonment
escape
level is
determined
a correc-
or on
from
of
points assigned
the
each of the
15A-1340.14(b)(7).
the sum of
tional institution. See
prior
convictions.”
ISA-
[defendant's]
closely re-
These circumstances involve facts
1340.14(a). Prior to
the
amendments
conviction,
prior
and thus
lated to the fact of
scheme,
Carolina
a sen-
the North
the
associat-
do not involve
sort of discretion
could,
judge
tencing
limited circum-
aggravating
judicial fact-finding
ed with
stances,
prior
points
assess
level
based
record
require
The 2005
now
factors.
amendments
findings
than the fact
on its own
of facts other
15A-1340.14(b)(7)
by a
to be found
facts
prior conviction. Points could be assessed
jury
admitted
defendant. See
or
the defen-
if the offense was
while
committed
15A-1340.16(a5).
(1)
probation, parole,
post-
dant was
on
authorized,
the maximum sentence
and it Rodriquez’s first conviction under
for the district court not to
was error
Washington
same
statute
quali-
was not a
Pruitt’s
consider
record level
de-
fying
because, given
offense
Rodriquez’s
termining whether Pruitt’s
convictions
history,
criminal
the first conviction was
“punishable” by
were for an offense
a term punishable by only
years
prison.
five
imprisonment exceeding
year.
one
There is no reasonable basis on which to
Rodriquez provides persuasive authority
distinguish the North Carolina scheme’s
In
regard.
holding
this
that the recidi-
consideration of a
defendant’s
record
statutory provision
vism
could be account-
level and the recidivism enhancement pro-
in determining
ed for
the maximum term vision at
in Rodriquez.
each,
issue
Under
authorized for
of-
criminal record of the defendant
fense,
clearly
indicated
operates to increase the defendant’s sen-
that consideration of that enhancement
tencing exposure, reflecting
legislative
proper only
in circumstances where
judgment
to authorize harsher criminal
particular
defendant actually faced the
penalties for persons who
previously
have
possibility of the enhancement. Rodri-
engaged in
activity.
In Rodri-
quez,
Finally, we high enough record level was holdings of Pruitt’s tension with here is some held, year. exceeding a one That circuit has to warrant sentence the Fourth Circuit. Additionally, indicates that the the record in the context of the same scheme, may not be “to determine at issue here two convictions punish- potentially is for a crime convictions that only prior a conviction whether exceeding year, one term convictions under by prison predicate able a aggravated maximum § ... we consider the Pruitt has conceded example, 4B1.1. For for that imposed that could be drug Georgia conviction that a with the worst upon crime defendant for prior felony as a conviction qualifies 841(b)(1)(B) history.” See United possible § 21 purposes U.S.C. (4th 242, 246 Harp, 406 F.3d enhancement, States v. of his purposes and also for Cir.2005). however, was decided Harp, pos § It is 922(g)(1)conviction. 18 U.S.C. But see United States prior Rodriquez. conviction, to or others listed sible that this (4th Lemons, Cir. Fed.Appx. 258 v. report, might qualify as presentence 2008) relying case on (post-Rodriquez purposes conviction for predicate Rodriquez). no discussion of Harp with may give § court fur 4B1.1. The district persuades us that Rodriquez And because matters on rem to these ther consideration necessary to consider the defendant’s it is and.2 level—and not
particular
III.
prior record level—in
merely the worst
a conviction was for
determining whether
brief,
Pruitt asserts addition
his
by a term exceed-
“punishable”
an offense
to
sentence. Al
arguments
al
related
his
§§of
4B1.1 and
year
purposes
sentence,
Pruitt’s
we
though we vacate
that the district court
we conclude
arguments
provide
to
address two of those
procedural error
in this case committed
court on remand.3
guidance to the district
sentencing guidelines
calculating Pruitt’s
First,
government
that the
argues
—
States,
U.S.
range. See Gall United
procedures
with the notice
comply
failed to
-,
425 851(a), § U.S.C. such an increase cannot this court concluded in an unpublished de- however, imposed, govern unless the requirements cision that the §of 851 were ment, entry before of a plea guilty or met government where the filed the infor- trial, has filed an information with the mation in open trial, court but the stating in writing previous court the con clerk did not enter the information on the upon victions relied for the enhancement. docket until after begun. trial had Be- significant This is to the career offender cause “both the transcript of pre-trial the because, § guideline analysis conference and the certificate of service on § the offense level is 37 for an offense that the 851 information” indicated that no- life, statutory carries a maximum of and 34 tice trial, was served the fact that for an offense that a statutory carries max the information was entered on the docket years imum of 25 If govern or more. after trial was 816; “immaterial.” Id. at ment did properly comply with Weaver, see also United States v. 905 F.2d 851, (11th Cir.1990) § procedures 1466, (no notice set out in § 1481 851 viola- offense level under the career offender tion where the information was docketed guideline again district court deter days four after trial commenced because —if guideline mines that that applica is indeed the record indicated that counsel for de- ble in Pruitt’s case—would be 34 actually instead fendant received the information 37. Pruitt contends that because he en before trial began). The transcript of the plea guilty tered a at approximately 11 arraignment hearing in similarly this case 11, 2005, July a.m. on and because the indicates that Pruitt and his counsel re- government did not “file” the information ceived the information at the rearraign- until p.m. day, 1:32 later that govern hearing prior ment plea to his of guilty. requirements Thus, ment did not meet the Pruitt had “reasonable notice and § 851. argument This lacks merit. opportunity to be heard regarding pos- sibility of sentence,” an enhanced see Unit- government § tendered the in- 851 Pritchett, 537, ed States v. 496 F.3d formation to the district court at begin- (6th Cir.2007) (quoting United States v. ning of the rearraignment hearing, before (6th King, Cir.1997)), 127 F.3d Pruitt guilty plea. entered his Counsel for and it is immaterial that the clerk entered Pruitt acknowledged at rearraignment the information on the docket after Pruitt hearing previously that she had received pled guilty. Because Pruitt received suffi- § 851 information govern- from the cient 851(a), § notice under 21 U.S.C. ment, and stated that she had “not been district court precluded, is not on provide able to [information] notice grounds, applying from an offense [Pruitt], I lay but will it in front of him at level of 37 under 4B1.1 if it determines this moment and he can review that.” that the ap- career offender enhancement Counsel also stated with respect plies. information, object, would, “If I could I Honor, Thereafter, Your but can’t.” Second, Pruitt contends that his pled guilty to the 21 U.S.C. process rights due were violated because 841(a)(1) offense. The clerk then dock- he provided was not with sufficient notice eted 851 information at p.m. 1:32 subject that he was to the career offender government out, As the points this court enhancements under the sentencing guide rejected arguments others have argument simi- lines. This unavailing. is also Butler, lar to Pruitt’s. part United States v. As argument, of his Pruitt contends (6th Cir.2005), Fed.Appx. process requires 815-16 that due that the notice *10 426 21 be ex- IV. 851
requirements
U.S.C.
enhancements
to career offender
tended
II, supra,
the reasons stated in Part
For
ar-As
sentencing guidelines.
the
under
and remand
we vacate
sentence
and acknowl-
government
the
gued by
opin-
this
resentencing consistent with
for
Pruitt, however,
argument
that
edged
ion.
circuit.
rejected
been
this
previously
has
966,
Mans,
F.2d
v.
MERRITT,
States
dissenting.
See United
Judge,
Circuit
Cir.1993).
(6th
Moreover, in United
in this
designation
The “career offender”
(6th
Herrera,
375 F.3d
States
turning the
minor and remote
two
case—
Cir.2004),
process
due
rejected
this court
into “felo-
North Carolina convictions
the de-
to Pruitt’s where
argument similar
approxi-
make a
nies”—would
difference of
(1)
plea
been informed
the
had
fendant
I
mately
years
Pruitt’s sentence.
he
as a career
may qualify
agreement
the
disagree
dissent not because I
record, and
on his criminal
offender based
highest
using
district court erred in
the
(2)
sentencing
received,
prior to the
weeks
level”
Car-
“prior record
under North
that rec-
hearing,
presentence report
sentencing
finding
olina’s
scheme
as a career offend-
sentencing
ommended
offender,”
Pruitt was a “career
but be-
Wilhite, No.
also United States v.
er. See
clear instruc-
cause would remand with
(6th
90-5931,
*1
Cir.
1991 WL
at
can-
to the district
that Pruitt
tions
court
1991) (“Concerns
process do
Apr.4,
for due
not be sentenced as a “career offender.”
that a
defendant be
require
not
criminal
reopen
a “ca-
should not
the door to
We
application
advance
placed on
notice
separate
reer offender” sentence for three
guide-
a career offender
(1)
reasons:
The North
sentenc-
Carolina
has,
long as
line
so
the defendant
Pruitt
to be
ing
permit
statute does
case,
(2)
in the
been afforded
he was
instant
punished
felony;
United States
adequate opportunity
challenge
an
law
sentencing
pro-
case
enhance-
applying
factual basis for
going
hibits a federal court from
outside
ment.”). Here,
in-
plea agreement
facts
“career
narrow set of
to make a
(3)
sentencing
sentencing
that “the
deter-
and
designation,
formed
criminal”
scope
lenity requires
mination will be
on the entire
rule of
in this case the
based
The
conduct,
sentencing
the defendant’s criminal
defen-
use of the federal
date instead
calculat-
history,
pursuant
and
of the state
date when
dant’s
whether Pruitt
a “career criminal.”
guidelines
factors and
as set forth
is
other
Sentencing
and the factors
Guidelines
Sentencing
I. The North Carolina
Further,
in 18
set forth
U.S.C.
3553.”
and the Federal “Career
Statute
presentence report expressly
recom-
Designation
Criminal”
that Pruitt
as a ca-
mended
be sentenced
offender,
afforded,
reer
and Pruitt was
argument
I can think of no legitimate
afforded,
again
adequate
indeed will
neither the ma-
based on
record —and
that assessment
opportunity
challenge
government
jority
suggests
nor
Pruitt has
proceeding.
in a
court
argument whereby
the district
—
thus failed to establish
constitutional
on remand use Pruitt’s
convic-
could
regard,
error in this
and the district court
designate
to now
Pruitt as a career
tions
process grounds,
on
precluded,
is not
due
nature of the
offender.
convoluted
assessing
concerning
en-
Sentencing
from
career offender
Guidelines
U.S.
§§ 4B1.1
designation,
hancement.
“career offender”
*11
(c)
is such that in order
and
to under-
from subsection
of 8-10 months. The
we
only
stand this case
must first understand
way to reach a 15-month maximum
law,
sentencing
the North Carolina
sentence for a
felony
Class I
there-
—and
§§
through
15A-1340.14
15A-1340.17.
fore to
predicate
convictions as
North
Carolina’s structured
purposes
felonies for
applying
the ca-
employs grid
scheme
resembles
reer offender enhancement in the federal
Guidelines,
Sentencing
federal
with the Guidelines—is for the offender’s sentenc-
“class of offense” for state convictions
ing range to be in the “aggravated” cate-
comparable to the “offense level” under
(c).
gory under subsection
In order for
system
the federal
and the “Prior Record
either of Pruitt’s North Carolina offenses
comparable
history
Level”
to the “criminal
to be classified
punishable
for more
category” for recidivist offenders. N.C.
year
than one
under the “career offender”
Gen.Stat.
15A-1340.17. Each offense lev- provision of the U.S. Sentencing Guide-
categories:
el
three
mitigated, pre-
has
lines, the North Carolina sentencing court
sumptive
aggravated.
N.C. Gen.Stat. would have to find as a fact a series of
15A-1340.17(c).
category pre-
Each
North
“aggravators
Carolina
under
sentencing range,
scribes a
depending
1340.17,
which the North Carolina court
upon
“prior
under which
record level” the
did not find at the time of sentencing and
following
defendants falls. The
subsection
do not exist in our
or any
record
record in
in the statute dictates the “maximum stat-
any
subject
federal or state court
judi-
utory
may
sentence” that
be imposed upon cial notice and
use
us in this case.
a defendant falling
specific range.
within a
Because aggravators were not present
15A-1340.17(d) (“for
N.C. Gen.Stat.
each the
two
state convictions and it would
minimum
term of
in the
impermissible
for a North Carolina
(c)
section,
chart in subsection
of this
ex-
state judge to find such aggravators were
months,
pressed in
corresponding
max-
Pruitt sentenced for the same crimes to-
imprisonment,
imum term of
also ex- day,
contrary
it is
to find that an
law
months,
pressed
specified
is as
in the
“aggravated” sentence should serve as the
table
through
below for Class F
Class
punishment
“maximum
authorized” for
felonies.
figure
The first
is the minimum
Pruitt’s state
Blakely
convictions. See
(c)
term [from subsection
and the
]
second
Washington,
542 U.S.
124 S.Ct.
term.”)
is the maximum
(2004).
charged
I
range for Class
“presumptive”
the
sentencing
top of
state
law,
by the
or found
months.
in North Carolina—12
are re-
felonies
why we
not see
I do
judge. So
15A-1340.17(d).
opin- N.C. Gen.Stat.
with an
court
manding to the district
court
the district
gives
that
and order
ion
at all to this
extent it is relevant
To the
Pruitt as
authority to sentence
open-ended
situation,
Pruitt’s ar-
Rodriquez supports
“career offender.”
a
in question
the
that when
statute
gument
“maximum” sentences
multiple
contains
the maximum sen-
that
agree
I do not
the
categorization of
class,
is,
on some
depending
offense
for the entire
tence
conduct,
sentencing
the
on
offender based
finding
aggra-
of
requires
sentence
and circum-
look to the facts
court should
aggrava-
of whether
regardless
vators
determine
that conviction to
jury to
stances of
by a
have been found
ting factors
applies
pur-
for
sentence
which maximum
particular
case of a
the
exist or admitted
enhancement.
of the career offender
poses
maximum al-
defendant,
as the
can serve
applicable
the
only
held
Rodriquez
determin-
purposes
for
sentence
lowable
purposes
maximum
of federal
sentence for
That is what
status.
ing career offender
by the under-
sentencing
prescribed
is that
in this case.
opinion allows
majority
the
statute,
to the
opposed
as
lying
jury finding
guilty
In the
absence
actually received
the defendant
statutory sen-
sentence
highest possible
plea, the
guidelines
top
specified
of the
or the
law is
under North Carolina
tence
argued.
range, Rodriquez
“presumptive”
statutory maximum for
for a maximum sen-
provides
which
range,
that there can be
did not hold
The Court
Blakely Washing-
of 12 months.
tence
“maximum” sentence
applicable
2531,
ton,
296,
159
124 S.Ct.
542 U.S.
and it must be the
the offense class
for
Allen,
(2004);
359
State v.
L.Ed.2d 403
for
defendant.
highest
possible
level
(2005).
The
N.C.
615 S.E.2d
federal
Rodriquez directs the
has held
Supreme Court
underlying
state stat-
to look to
court
for an
possible
maximum
that the
than
prescribes more
ute.
If the statute
Pruitt,
offender,
category
of “no
like
for different cate-
one maximum sentence
circumstances” is
aggravating
finding
defendants,
look
the court should
gories of
range with its absolute
“presumptive”
surrounding
factors
appropriate
maximum sentence of months.
prior convictions
individual defendant’s
if the convictions
rely on
determine
majority seems to
United
The
—
-,
enhancing
the federal
purposes
Rodriquez,
U.S.
States v.
majority argues should
(2008),
just as the
to find
inquiry. § 4B1.2 cmmt. n. U.S.S.G. Based on the fact that there is no basis event,
In any Rodriquez directly did not to find that Pruitt’s maximum sentence address the issue in this case—whether an could have exceeded 12 regardless months aggravated or non-aggravated sentence level, prior his record I find a remand statutory should serve as the maximum unnecessary. Under no circumstances sentence under multi-tier scheme based present in this case should the district conduct, on such as North Carolina’s. court be allowed to use the “aggravated” Rodriquez did not raise the Sixth Amend- range to determine prior Pruitt’s ment issue of whether an aggravated sen- tences under North Carolina law. If the tence can statutory serve as the maximum district court is finding confined to that the aggravators when no present were at the maximum allowable sentence Pruitt could time of and where the state have received for his I Class offenses sentencing court prohibited would be from fall “presumptive” within the range, there finding aggravators today way is no that sentences Blakely and Rodriquez Allen. does not could have year exceeded one and the alter the conclusion that the maximum possibility of sentencing him in federal possible sentence under North Carolina court as a “career offender” becomes im- law to which a Class I offender in the possible.
category finding of “no of aggravating cir- statutory
cumstances” is the
II.
maximum for
Case Law Prevents
presumptive
Going
range.
Outside the Record
highest
maximum sentence
Although
to which
I do not believe we need to
subject
Pruitt was
as a
I felony
Class
even
address Pruitt’s
record level
finding
offender with no
of aggravating
because he should
exposed
to no sen-
months,
exactly
circumstances was
exceeding
even tence
regardless
months
it could be
level,
determined that he should be
agree
his
record
I
if
placed in
highest “prior
record level” district court erred in assuming the worst
(Level VI).
category
Therefore,
only possible prior
record level for Pruitt under
way that Pruitt can be found to be a North Carolina’s recidivist statute instead
“career offender” is if the
making
district court
finding
individualized
as to
finds
his
record level under
Pruitt based on his record under North
North
However,
Carolina law is at the maximum Carolina law.
looking back to-
level of
and if
dispositions
VI
I
day,
way
his
see no
to determine Pruitt’s
Class
offenses fall within
“aggravat-
“prior
record
any accuracy.
level” with
range
ed”
instead of the “presumptive”
require
The determination would
the dis-
sys-
of North Carolina’s three-tier
trict court to find unknowable factual an-
ments
career offender enhance-
questions.
do
like the
unknowable
We
swers to
facts,
any,
if
the ment.
know what
even
years
judges
ago
used
Moreover,
no basis to
we have
assume
level,” or
“prior
calculate the
date,
the state
instead of the
conviction
made, or
a calculation was
whether such
date,
federal “career offender”
calculations,
anyone,
who
made
for
appropriate
determining
is the
date
go
now about reconstruct-
how
would
is
“penalty”
whether the state law
a “felo
it is
would have consti-
whatever
ny”
purposes
offender”
or a
“career
“prior record lev-
tuted Pruitt’s unknown
confusion
misdemeanor. With such
worse, Supreme
make matters
el.” And to
go
how a
would
about
federal court
estab
*14
district
law forbids federal
Court case
level”
lishing
“prior record
cal-
offender” cases from
in “career
courts
purposes
North Carolina law for the
of
law sentence based on
culating a state
guideline,
federal career offender
we can
district
facts
the record. Federal
outside
not direct
the district court.
It is
guide
or
may
“look
fact of convic-
courts
penal
of
clear
in the construction
laws
statutory
tion
and the
definition
ambiguity
where
as to the
there is
offense,”
they may
and
not “deter-
nature of
used to calcu
penalty
try
was or
mine
the conduct
to recon-
what
late such
“career offender”
things as
sta
that would determine
struct
facts”
tus,
common-law-inspired
lenity
rule of
Taylor
“prior
level.”
v. United
applied.
should be
And for “career crimi
States,
575, 601-02, 110 S.Ct.
495 U.S.
purposes,
nal”
the federal
(1990).
2143,
L.Ed.2d 607
Federal
109
at the
judge
penalty
should use the
lesser
subsequent evidentiary
avoid
courts “must
rather
ambiguity
end of
scale
than the
basis
ear-
inquiries into the factual
for the
greater.
lenity
correctly
rule of
The
conviction,”
they may
lier
and
not resolve
by
“career
applied
our court
crimi
“disputed findings of fact about what the
Morton,
v.
nal” context in
States
17
United
judge
defendant and the state
understood
(6th Cir.1994), by Judge Kennedy
F.3d 911
as
of the prior plea.”
the factual basis
Judge Kennedy
for a
panel.
unanimous
States,
13, 20,
Shepard
544
v. United
U.S.
pointed out that “if the defendant were
(2005).
1254,
III. The Rule of
penalty
state
law and the federal
were
law
to This Case
“ambiguous.”
question
“The
is at least
judge
the state
held,
“therefore,
Even
somehow
ambiguous,”
un
she
have
tencing Pruitt
1983
2003 could
lenity,
der the
should be
rule of
resolved
aggravators
could have
quoted
found some
then
defendant’s favor.” She
from
Bass,
336, 348,
from
“presump-
converted his sentence
United
v.
404 U.S.
States
(1971):
range,
tive”
“aggravated”
to the
we should 92 S.Ct.
criminal laws to be
favor of
(07-5443);
Frederick JELOVSEK
S.L.
them.”);
subjected
the defendants
Unit-
Family Winery,
Thomas
Inc. dba
— U.S.-,
Rodriquez,
ed States v.
Family Winery;
Thomas
Martin Red
(2008)
1783, 1800,
S.Ct.
Strict or Construction Penal Tennessee; Elks, State of Shari in her Statutes, (1935). 48 Harv. L.Rev. 748 capacity official as Executive Di My colleagues’ opinion purely is a for- rector, Beverage Tennessee Alcoholic malistic, legalistic document. It advances Commission, Defendants-Appellees, sentencing purpose, no princi- calls on no *15 ple policy or of sentencing, never mentions Spirits Wine and Wholesalers rehabilitation, deterrence, greater pun- “no Tennessee, Intervening Of (a necessary” ishment than version of the Defendant-Appellee. lenity), rule of or guidepost other set by Congress out in 18 U.S.C. 3553. For 07-5443, Nos. 07-5524. marijuana two minor and remote convic- may tions Pruitt crimi- receive “career United States Court Appeals, designation nal” and a disproportionate Sixth Circuit. comparable to the sentence he Argued: April 2008. would receive if his two were instead for rape robbery. Decided and Filed: Oct. defendant here is not an abstraction or a legalistic category. per- He is a real-life drugs, guilty
son addicted to growing
marijuana plants at his house—where he
also had three firearms like the “Arms” Supreme recently peo- held “the
ple right have the to keep and bear” under
the Second Amendment. For this terrible
crime, and his other two minor of-
fenses, sending we are the case back for
another hearing for the district
court to make an unknowable calculation
based on facts outside the record of this or
any record we can judicially notice. Even made-,
if such a calculation could be may Court has told go us we far
so afield.