Lead Opinion
Vacated and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judges KING, GREGORY, SHEDD, DAVIS, KEENAN, WYNN, and DIAZ joined. Judge DUNCAN wrote a dissenting opinion. Judge AGEE also wrote a dissenting opinion, in which Chief
OPINION
After Jason Simmons pled guilty to federal drug trafficking, the district court held that his prior state conviction for marijuana possession, for which he faced no possibility of imprisonment, was for an offense “punishable by imprisonment for more than one year,” triggering a sentencing enhancement under the Controlled Substances Act. This enhancement doubled Simmons’s minimum sentence. We affirmed in an unpublished opinion. See United States v. Simmons,
I.
For first-time offenders who possess with intent to distribute at least 100 kilograms of marijuana, the Controlled Substances Act (CSA) mandates “a term of imprisonment” of at least five years. 21 U.S.C. § 841(b)(l)(B)(vii). But for offenders who engage in such conduct “after a prior conviction for a felony drug offense has become final,” the CSA mandates a “term of imprisonment” of at least ten years. Id. A separate provision of the CSA defines a “felony drug offense” as a drug-related “offense that is punishable by imprisonment for more than one year under any law ... of a State.” Id. § 802(44).
On August 6, 2007, a federal grand jury returned an indictment charging Simmons with three counts of marijuana trafficking under the CSA. The Government subsequently filed a Bill of Information, pursuant to 21 U.S.C. § 851, alleging that Simmons’s 1996 North Carolina conviction for possession with intent to distribute marijuana constituted a predicate “felony drug” conviction triggering the ten-year statutory minimum sentence set forth in the CSA. Simmons pled guilty to the federal charges but contended that his prior North Carolina conviction could not serve as a predicate for an enhanced sentence. The district court rejected Simmons’s objection to the enhancement and sentenced him to ten years’ imprisonment.
In an unpublished opinion, we affirmed Simmons’s sentence, although we acknowledged that Simmons “could not have re
II.
A proper analysis of Simmons’s sentencing enhancement requires that we first place his prior North Carolina conviction in the context of the unique statutory regime mandated by the North Carolina Structured Sentencing Act (“the Act”).
A.
The Act creates felony sentences strictly contingent on two factors: the designated “class of offense” and the offender’s “prior record level.” N.C. Gen.Stat. § 15A-1340.13(b). Both factors are established by statute. The Act, or in some cases another state statute creating the offense of conviction, specifies the class of offense. Id. § 15A-1340.17(a). The Act mandates that the sentencing judge determine an offender’s prior record level by adding together the point levels (which the Act assigns) of each of the offender’s prior convictions. Id. § 15A-1340.14(a)-(b). The State bears the burden of proving the existence of these prior convictions. Id. § 15A-1340.14(f).
The Act then requires the sentencing judge to match the offense class and prior record level pursuant to a statutory table, which provides three possible sentencing ranges — a mitigated range, a presumptive range, and an aggravated range. Id. § 15A-1340.17(c). The presumptive range governs unless the judge makes written findings that identify specific factors, separately designated by the Act, that permit a departure to the aggravated or mitigated range. Id. §§ 15A-1340.13(e), 15A-1340.16(c). Moreover, the Act provides that a judge may select from the aggravated range only if the State has provided a defendant thirty-days’ notice of its intent to prove the necessary aggravating factors, id. § 15A-1340.16(a6), and a jury has found beyond a reasonable doubt (or the defendant has pled to) the existence of those factors, id. § 15A-1340.16(a)-(al).
Once the judge identifies the appropriate range, the Act provides that he must choose the defendant’s minimum sentence from within that range.
B.
North Carolina designates Simmons’s predicate offense — possession with intent to sell no more than ten pounds of marijuana — as a Class I felony. Id. §§ 90-94, 90 — 95(b)(2); cf. id. § 90-95(h)(l). Under
The State satisfied neither condition in this case. First, the State did not provide Simmons notice of intent to prove any aggravating factors; this foreclosed the sentencing judge from imposing an aggravated sentence. Second, because as a first-time offender Simmons possessed a “prior record level” of only 1, the Act established a minimum sentencing range of four-to-six months’ community punishment (no imprisonment) and capped his maximum sentence at eight months’ community punishment (again no imprisonment). Id. § 15A-1340.17(e)-(d); id. § 15A-1340.11(l)-(2). In compliance with these requirements, the state judge did not sentence Simmons to a single day of imprisonment, instead imposing only six-to-eight months’ community punishment.
III.
Nevertheless, the Government correctly notes that if United States v. Harp,
A.
Last year, in Carachuri, the Supreme Court examined a provision of the Immigration and Nationality Act (INA) that allows an alien to seek cancellation of removal only if he “has not been convicted of any aggravated felony.” 8 U.S.C. § 1229b(a)(3). The statute further defines the term “aggravated felony” as including a “drug trafficking crime,” id. § 1101(a)(43)(B), which another statute defines as including “any felony punishable under the Controlled Substances Act,” 18 U.S.C. § 924(c)(2). A final statutory provision limits a qualifying “felony” to “a crime for which the ‘maximum term of imprisonment authorized’ is ‘more than one year.’ ” Carachuri,
In 2004, Carachuri had received a 20-day sentence for possessing less than two ounces of marijuana in violation of Texas law. See id. at 2583. In 2005, he received a 10-day sentence for possessing a Xanax
In contending that the 2005 Texas conviction nevertheless constituted a predicate “aggravated felony” conviction under the INA, the Government argued that if Carachuri had faced federal prosecution for the 2005 offense, he could have “received a 2-year sentence.” Id. at 2582. This was so because federal law provides for a sentence of up to two years for drug possession, as long as the offender has a “prior conviction for any drug ... offense chargeable under the law of any State.” 21 U.S.C. § 844(a). Given Carachuri’s prior 2004 conviction, he hypothetically could have received a two-year federal sentence for his 2005 Xanax offense. In view of this hypothetical, the Government argued that Carachuri’s 2005 conviction was for an aggravated felony that was “punishable” by imprisonment for more than one year, even though he actually received a sentence of only ten days’ imprisonment. Carachuri,
Although the Fifth Circuit had accepted this argument, see Carachuri-Rosendo v. Holder,
In Carachuri the Government also contended, in an argument parallel to that pressed here, that the CSA provision under which Carachuri could have been punished created only one “offense,” and that the existence of a prior conviction was merely a “predicate for an enhanced sentence, not an element of the offense.” Carachuri, Respondent’s Br. at 24. The Government thus argued that Carachuri’s conviction was for an “offense” — drug possession — that was potentially “punishable” by an enhanced sentence, even though the CSA reserved enhanced sentences for recidivists.
The Supreme Court also specifically rejected this argument. It acknowledged that the statutory text of 21 U.S.C. § 844(a) did not “expressly define a separate offense of ‘recidivist simple possession.’ ” Carachuri,
Of course, Carachuri involved use of a predicate conviction for immigration purposes rather than for criminal sentencing. However, in Carachuri the Supreme Court stated that its “[Ijinking” of the “inquiry to the record of conviction comports with how [it] ha[d] categorized convictions” for criminal sentencing purposes. Id. at 2587 n.
B.
With the analysis established in Carachuri and Rodriquez in mind, we turn to the determination of whether Simmons’s 1996 conviction was for an offense “punishable by imprisonment for a term exceeding one year” and so qualifies as a predicate felony conviction for purposes of the CSA.
1.
“[T]he conviction itself’ must serve as our “starting place.” Carachuri,
Because the state sentencing court never made the recidivist finding necessary to expose Simmons to a higher sentence, Carachuri teaches that the Government cannot now rely on such a finding to “set the maximum term of imprisonment.” Carachuri,
To be sure, in Rodriquez the Court also rejected the argument that “guidelines systems,” which “typically allow a sentencing judge to impose a sentence that exceeds the top of the guidelines range,” serve to “decrease the ‘maximum term’ of imprisonment.”
Our conclusion that the Act serves as a legislative mandate and not as a “guidelines system[]” accords with that of the other courts of appeal to have considered this question. See United States v. Haltiwanger,
In Pruitt, the Sixth Circuit assessed the impact of Rodriquez on North Carolina predicate convictions under ACCA, and it found “no reasonable basis on which to distinguish the North Carolina” Act from “the recidivism enhancement provision at issue in Rodriquez.” Id. at 423. The Pruitt court thus concluded that “it is necessary to consider the defendant’s particular prior record level — and not merely the worst prior record level — in determining whether a conviction was for an offense ‘punishable’ by a term exceeding one year.” Id. at 424. Although in our earlier unpublished opinion in this case we held that Rodriquez did not require rejection of the Harp rule, the Sixth Circuit’s'analysis now seems clearly correct given the Supreme Court’s subsequent ruling in Carachuri. See
Our determination that Carachuri undermines our previous approach mirrors that made in Haltiwanger. There, the Eighth Circuit analyzed whether a prior conviction for a violation of Kansas law qualified as a “felony drug offense” under 21 U.S.C. § 841(b)(1).
2.
Carachuri also forbids us from considering hypothetical aggravating factors when calculating Simmons’s maximum punishment. We again focus first on Simmons’s “conviction itself,” Carachuri,
The panoply of procedural protections afforded to offenders facing a potentially aggravated sentence further strengthens this conclusion. As detailed above, an offender can receive an aggravated sentence only if: (1) North Carolina provides him with 30-days’ notice of its intent to prove the necessary aggravating factors, N.C. Gen. Stat. § 15A-1340.16(a6); (2) he admits (or a jury finds) the existence of those factors, id. § 15A-1340.16(al); and (3) the sentencing judge issues written findings justifying such a sentence. Id. § 15A-1340.16(c).
These protections closely resemble the “mandatory notice and process requirements,” contained in 21 U.S.C. § 851, which figured in the Carachuri reasoning. See
rv.
The Government does not dispute that Carachuri held that “a recidivist finding” can “only” “set the ‘maximum term of imprisonment’ ... when the finding is a part of the record of conviction.” Id. at 2587 n. 12. The Government also recognizes, as it must, that the only other appellate courts to have considered the question have held that Supreme Court precedent requires rejection of enhancements similar to the one here. Tellingly, in neither case did the Government seek rehearing en banc. Nonetheless, the Government insists that Harp remains good law and that we should distinguish Carachuri.
Contrary to the Government’s contention, Carachuri directly undermines the Harp rationale. In Harp we analyzed a sentencing enhancement that turned on the presence of a prior conviction for a “crime punishable by imprisonment for a term exceeding one year.” Harp,
This reasoning assumes that an offender’s conduct alone determines the nature of his “crime.” This is of course true for constitutional purposes. See Carachuri,
B.
Given these facts, Carachuri and Rodriqiiez clearly foreclose reliance on Harp. The Government, while barely mentioning Rodriquez, attempts to distinguish Carachuri on three grounds. We address each in turn.
1.
First, the Government claims that, unlike the statute at issue in Carachuri, the North Carolina Structured Sentencing Act “does not ... define separate recidivist offenses.” Appellee’s Br. at 7. This is assertedly so because the Act creates eighteen sentencing ranges for each felony class. The Government argues that the Act therefore fails to create separate offenses because it recognizes “gradations of recidivism,” while the statute in Carachuri differentiated between offenses based “solely on the fact of recidivism.” Id. at 8 (emphasis added).
The Government’s argument rests on a false premise. Contrary to the Government’s contention, the statute in Carachuri did not create distinctions based “solely on the fact of recidivism”; rather, it provided three sentences corresponding to three different gradations of recidivism. See 21 U.S.C. § 844(a) (providing a maximum of one year’s imprisonment if a defendant is a first-time offender, two years’ imprisonment if a defendant has a “prior conviction,” and three years’ imprisonment if he has “two or more prior convictions”). Perhaps because of this, nothing in Carachuri offers any support for the Government’s “gradations” argument. The Supreme Court there inferred “separate and distinct” offenses because “recidivist ... possession” (in reality the intermediate punishment provided by the statute) required proof of “the fact of a prior conviction.”
Second, the Government suggests that the Carachuri holding does not apply here because the state predicate for which Simmons was convicted was a “Class I felony,” while the state predicate for which Carachuri was convicted was not a “recidivist offense.” Appellee’s Br. at 9. This argument too rests on a false premise; it assumes that the “Class I felony” for which Simmons was convicted constitutes the sort of “recidivist offense” that Carachuri avoided. But as explained above, Simmons’s “Class I felony” does not qualify as a “recidivist offense,” because Simmons’s record of conviction — like Carachuri’s— lacked the finding necessary to expose him to a recidivist sentence. Accordingly, the North Carolina Structured Sentencing Act restricted Simmons’s maximum sentence to eight months’ community punishment, in the same way that § 844(a) restricted Carachuri’s maximum sentence to one year.
Of course, the analysis in Carachuri was more complicated than that here. The question of whether Carachuri’s predicate offense qualified as an “aggravated felony” under the INA turned on whether the “ ‘proscribed conduct’ of [his] state offense” was “punishable as a felony under ... federal law.” Carachuri,
The inquiry here is simpler, because 21 U.S.C. § 841(b)(1)(B) does not require comparison of Simmons’s state offense to a fictional federal crime. That simplicity, however, does not render the Carachuri holding inapplicable here. The Supreme Court’s rejection of the Government’s argument in Carachuri had nothing to do with the number of hypothetical in the analysis; after all, established precedent required resort to the initial hypothetical in determining whether a state offense was “punishable” as a federal felony. See Lopez,
3.
Third, the Government insists that Simmons’s prior conviction, unlike Carachuri’s, was for “conduct that one would expect would be ‘punishable’ by more than one year in prison.” Appellee’s Br. at 10. But the Government has provided no evidence in support of the assertion that “one would expect” Simmons’s first-time possession of less than ten pounds of marijuana to trigger a sentence of imprisonment exceeding one year. After all, North Carolina judged Simmons’s crime worthy of no imprisonment — making it in one sense even less serious than Carachuri’s crime. See Carachuri,
Indeed, it is the Government’s approach — requiring a federal court to calculate an offender’s maximum punishment by interpreting a prior state offense in a manner outlawed by the state — that invites results that are, as in Carachuri, “counter-intuitive and unorthodox.” Carachuri,
Or to take another example: under the North Carolina Structured Sentencing Act, a daycare provider who willfully administers any over-the-counter medication to a child, without written parental authorization, commits a Class A1 misdemeanor for which a first-time offender faces a maximum sentence of sixty days’ imprisonment. Id. §§ 110-102.1A(a), (d), 15A-1340.23. Yet the Government’s approach — requiring calculation of an offense’s maximum term of imprisonment by reference to an imagined worst-case offender — would require a federal court to consider this daycare provider as having committed an offense “punishable” by 228 months’ imprisonment. Id. §§ 14-50.22 (converting any Class A1 misdemeanor into a Class I felony if performed “in association with[ ] any criminal street gang”), 14-7.1, 14-7.6 (converting Class I felony committed by a “habitual felon” into Class C felony), 15A-1340.17(c), (e).
Such an approach — requiring federal courts to treat even minor state crimes as serious felonies — makes a mockery of North Carolina’s carefully crafted sentencing scheme. It also disregards the rationale of Carachuri, which emphasized that federal courts should not apply hypotheti
V.
For the foregoing reasons, we vacate Simmons’s sentence and remand for proceedings consistent with this opinion.
VACATED AND REMANDED.
Notes
. The district court imposed concurrent 120-month sentences for each of the three counts. Two of the three counts charged Simmons with possession with intent to distribute under 50 kilograms of marijuana, for which the CSA establishes statutory máximums of ten years for recidivist possession and five years for first-time possession. 21 U.S.C. § 841(b)(1)(D). Simmons thus received the statutory maximum for these two counts. The remaining count charged Simmons with conspiracy to distribute at least 100 kilograms of marijuana, which triggered the 10-year statutory minimum required by 21 U.S.C. § 841(b)(1)(B). Therefore, our holding that Simmons possesses no "prior conviction for a felony drug offense” fixes his maximum sentence for the two lesser counts at five years, and it reduces to five years the minimum sentence for the remaining count.
. In rare cases in which a judge finds the presence of "extraordinary mitigating factors," he may impose a lesser sentence. N.C. Gen.Stat. § 15A-1340.13(g). But a judge possesses no discretion to impose a more severe sentence even in extraordinary cases.
. Thus, the Carachuri Court itself rejected the Government’s suggestion in this case, adopted by Judge Duncan in dissent, that the Carachuri analysis. applies only in the deportation context. Moreover, the ultimate question facing the Court in Carachuri was whether Carachuri's conduct was "punishable” as a felony under the CSA — the same statute that is at issue here. See Carachuri,
. We recognize that this conclusion is at odds with that of the Sixth Circuit, which upheld, over Judge Merritt’s dissent, resort to the aggravated range in calculating an offense's maximum punishment. See Pruitt,
. We note that § 851 (the federal procedural statute analyzed in Carachuri) and the North Carolina Act differ in some respects. On one hand, § 851, unlike the Act, requires a prosecutor to "file[ ] an information with the court” specifying the basis for the enhancement. Compare 21 U.S.C. § 851(a)(1) with N.C.G.S. § 15A-1340.16(a4). On the other hand, the Act contains two protections that § 851 lacks: a jury's finding (or an admission) of aggravating factors and written judicial findings justifying imposition of an aggravated sentence. See id. § 15A-1340.16(al), (c). Notwithstanding these differences, § 851 and the Act function identically in providing the elements crucial to the Carachuri Court’s analysis: both provide the defendant "notice of the Government’s intent,” and both "authorize prosecutors to exercise discretion when electing whether to pursue [an] ... enhancement.” Carachuri,
.In a Rule,28(j) letter, the Government contends that McNeill v. United States, - U.S. -,
. The principal dissent maintains that, had Congress intended our reading of the statute, it could have defined a "felony drug offense” as an "offense for which the defendant is punished by imprisonment for a term exceeding one year.” Certainly, Congress could have been clearer. However, that argument cuts both ways; if Congress had intended the dissent's reading, it could have written the statute in terms of "an offense for which any defendant could be subject to punishment for more than one year.”
. The principal dissent asserts that it too "looks only at the fact of Simmons’ prior conviction.” This contention totally misreads Carachuri. By "prior conviction," the Carachuri Court was referring to a conviction, imposed prior to a predicate conviction, which transformed a predicate conviction for "simple” possession into one for "recidivist” possession.
. Contrary to the suggestion of the principal dissent, our holding establishes no "unworkable rule.” Rather, it requires 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.
. The principal dissent errs in asserting that this "state-to-federal offense 'extrapolation' analysis” explains the Court's "look at the specific characteristics of Carachuri's conduct.” Rather, this "extrapolation analysis” required only that the Court assess whether Carachuri’s "state offense ... proscribed] conduct punishable as a felony under federal law.” Lopez,
. Before the original panel, Simmons also argued that the district court erred in "failing to provide a hearing” so that he "could establish that counsel in his 1996 conviction provided ineffective assistance.” Simmons,
Dissenting Opinion
dissenting:
The majority opinion correctly identifies the issue on appeal in this case: whether the analysis set forth in United States v. Harp,
I.
The proper starting point is the relevant statutory language. Jimenez v. Quarterman,
Critical to the analysis is the fact that Congress chose in § 802(44) not to define “felony drug offense” in terms of an individual defendant’s particular sentencing factors, but in terms of the statutorily created offense. As we explained in Harp, because the word “punishable” is an adjective that describes “offense,” the plain language of § 802(44) points to an offense-based analysis rather than a defendant-based analysis.
As more fully explained below, the ratio decidendi of neither Carachuri nor Rodriquez alter this common sense reading of the clear terms of § 802(44). That statute thus requires examining whether the statutory offense — not the particular defendant’s conduct — is “punishable” by more than one year of imprisonment. See Jimenez,
Had Congress intended a different result, it could have written § 802(44) differently. As this court observed in Jones,
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, “individual punished by imprisonment for a term exceeding one year” or even “individual sentenced for*252 imprisonment for a term exceeding one year.”
While other statutes written differently and covering different circumstances (as in Carachuri) may be read in other ways, § 802(44) says what it says. Nothing in that statute, or any other, directs us to alter the plain meaning of its terms so as to ignore the scope of N.C. Gen.Stat. § 90-95 and look instead to individual defendants’ particular acts. It bears noting, the issue we resolve here is not one of constitutional mandate, but whether federal jurisprudence set out by the Supreme Court in other cases involving other statutes alters the plain reading of § 802(44).
The sentence Simmons actually received or was individually subject to under N.C. Gen.Stat. § 15A-1340.10, et seq. (“North Carolina Structured Sentencing Act” or “the Act”), does not impact the analysis performed under § 802(44). Simmons did not contend in the district court, or at any time during his appeal, that other defendants charged and convicted under the same North Carolina statute that he was convicted of violating could not have been imprisoned for more than one year. Nor could he have made that argument: N.C. GemStat. § 90-95(a) is a Class I felony and a sentence of up to fifteen months’ incarceration is authorized for its violation. N.C. Gen.Stat. § 15A-1340.17. Consequently, Simmons’ conviction was for an offense that is punishable by imprisonment for a term of more than one year.
II.
The majority concludes the Supreme Court’s decisions in Rodriquez and Carachuri invalidate our prior reading of § 802(44). See, e.g., Harp,
In ordering remand, the Supreme Court did not determine the merits of this ease. A remand indicates only that intervening case law “may affect the outcome of the litigation” and that the court of appeals should have- the opportunity to fully consider the issue in light of the additional precedent. See Tyler v. Cain,
As the majority opinion notes, Carachuri involved an immigration proceeding and the case sub judice concerns criminal sentencing. I agree with the majority that
Facing deportation, Carachuri sought to apply for discretionary cancellation of removal, something for which he was ineligible if he had previously been “convicted of a[n] ‘aggravated felony.’ ”
In making that determination, the Supreme Court navigated a “maze of statutory cross-references” to determine whether Caraehuri’s existing state conviction could have been an offense that would be punishable as a federal felony under the Controlled Substances Act (“CSA”) had he been charged and convicted of such in a federal court.
The Supreme Court concluded that “except for simple possession offenses involving isolated categories of drugs not presently at issue, only recidivist simple possession offenses are ‘punishable’ as a federal ‘felony’ under the [CSA].”
The majority opinion relies on the foregoing statute-specific analysis in Carachuri to project that Simmons was not “convicted” of an offense punishable by more than one year of incarceration under the Act. The majority accurately notes that Simmons himself — as a first-time offender with a low criminal history score — could not have received a sentence exceeding eight months’ community service punishment. Maj. op. at 243. That conclusion, however, does not axiomatically resolve our case and does not take into account the text and context of the inquiry in Carachuri. That is, in order to perform the requisite state-to-federal offense “extrapolation” analysis in Carachuri, the Supreme Court had to look at the specific characteristics of Carachuri’s conduct underlying the Texas conviction. And because the Court was concerned with how Carachuri was actually charged and the characteristics of his conduct for purposes of determining
By contrast, the issue in the case at bar is whether the North Carolina offense for which Simmons was convicted was “punishable” by more than one year of incarceration. It does not raise the question (from Carachuri) of what hypothetical offense never prosecuted by a different sovereign the defendant could have been, but was not, charged with, given the specific characteristics underlying his state conviction. Put another way, Simmons’ conviction “serve[s] as [the Court’s] ‘starting place’ ” only insofar as it identifies Simmons’ statutory offense. Cf., Maj. op. at 243 (quoting Carachuri,
Instead, our focus should be on “the terms of the provisions and the ‘commonsense conception’ of those terms.” Carachuri,
For this reason, too, the majority is incorrect that this approach wrongly “assumes that an offender’s conduct alone determines the nature of his ‘crime’ ” for purposes of determining “whether a prior state conviction constitutes a predicate permitting the application of a federal sentencing enhancement.” Maj. op. at 246 (citing Carachuri,
In Carachuri, the Government’s position rested on theorizing what convictions Carachuri could have been prosecuted for, regardless of his actual state statute of conviction. Here, the Government’s position — and mine — rests squarely on Simmons’ actual statute of conviction, N.C. Gen.Stat. § 90-95. Unlike the layers of conjecture required to project what crimes Carachuri could have committed, here no speculation or extrapolation is needed. The core issue is whether the North Carolina statute establishes an offense punishable by imprisonment for more than one year. It does. There is thus no reason to
Contrary to the majority opinion’s implication, the approach I propose does not implicate, let alone run afoul of the principle expressed in Caraehuri that a federal court may not “ex post, enhance the state offense of record just because facts known to it would have authorized a greater penalty under either state or federal law.”
The majority opinion puts great weight on footnote 3 of Caraehuri to undergird its position; but that weight is more than the footnote can bear. What the Supreme Court said, twice, in that footnote is “the fact of a prior conviction must nonetheless be found before a defendant is subject to felony punishment.” Id. at 2581 n. 3; see also id. (“But the fact of a prior conviction must still be found — if only by a judge and if only by a preponderance of the evidence — before a defendant is subject to felony punishment.”). I submit that is exactly what this dissenting approach does: it looks only at the fact of Simmons’ prior conviction to see that the statute of conviction carries a punishment of up to fifteen months’ incarceration. While the Supreme Court had to parse Carachuri’s Texas conviction to complete the Lopez analysis, no such parsing is needed here.
Significantly, although the Supreme Court had the opportunity in Caraehuri to verify what it means for an offense to be “punishable” as a felony, it did not do so. The Government argued in Caraehuri that “the only statutory text that matters is the word ‘punishable’ in 18 U.S.C. § 924(c)(2): Whatever conduct might be ‘punishable’ as a felony, regardless of whether it actually is so punished or not, is a felony for immigration law purposes.” Carachuri,
Neither does Rodriquez’s discussion of recidivist factors negate my proposed reading of § 802(44). While a recidivist finding could have increased Simmons’ sentence to more than twelve months of actual imprisonment, a multitude of other factors also could have caused an adjustment of his sentence. Under the Act at least forty different factors can alter an otherwise presumptive sentence, but not the coverage of the charging statute. See N.C. Gen.Stat. § 15A-1340.16(d)-(e).
If anything, Rodriquez would seem to support the Government’s position. As the majority opinion recognizes, Rodriquez rejected the concept that some construct outside the statute of conviction, like a guidelines range, could alter what the terms of the federal statutory enhancement covered:
[T]he concept of the ‘maximum’ term of imprisonment or sentence prescribed by law was used in many statutes that predated the enactment of [the] ACCA and the federal Sentencing Reform Act of 1984, and in all those statutes the concept necessarily referred to the maximum term prescribed by the relevant criminal statute, not the top of a sentencing guideline range.
There is no separate recidivist possession charge under North Carolina law. The offense — N.C. Gen.Stat. § 90-95 — is the same charge, regardless of a defendant’s criminal history. Only after a defendant is convicted, at sentencing, does criminal history come into play. Moreover, over forty factors, besides recidivism, may go into a North Carolina sentencing decision under Gen.Stat. § 90-95. N.C. GemStat. § 15A-1340.16 and § 15A-1340.17. A defendant is convicted of the same offense — N.C. GemStat. § 90-95— regardless of his criminal history or the specific characteristics of that offense.
Admittedly, the other components used in determining where within the Act a particular defendant falls must be noticed prior to sentencing. If a prosecutor seeks to depart from the presumptive range to the aggravated range, the State must provide notice of its intent to prove aggravating factors and the jury must find those factors beyond a reasonable doubt. See § 15A-1340.16. However, the aggravated factors need not be part of the indictment or formal charge, nor is the conviction itself different from a conviction for the presumptive (or, indeed, mitigated) offense.
N.C. GemStat. § 90-95 constitutes one offense under North Carolina law; the distinguishing factors of criminal history and
The majority opinion also contends its approach is appropriate because it is consistent with the “panoply of procedural protections afforded to offenders facing a potentially aggravated sentence” and is necessary so as not to “second-guess [state prosecutors’] judgment” that Simmons’ conduct did not contain aggravated offense characteristics. Maj. op. at 244-45 and 249-50; see id. at 254 (arguing this approach “makes a mockery of North Carolina’s carefully crafted sentencing scheme”). However, reading the plain language of § 802(44) to mean what it says does not second-guess any component of Simmons’ state conviction. The North Carolina process of charging, convicting, and punishing Simmons was long decided and wholly independent of a later-in-time charge by the federal government for a different crime. As Justice Alito explained in Rodriquez, this later crime has no bearing on the earlier state crime and the state crime is merely a factor in sentencing regarding the later offense:
When a defendant is given a higher sentence under a recidivism statute — or for that matter, when a sentencing judge, under a guidelines regime or a discretionary sentencing system, increases a sentence based on the defendant’s criminal history — 100% of the punishment is for the offense of conviction. None is for the prior convictions or the defendant’s “status as a recidivist.” The sentence “is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one.”
Id. at 1789 (citation omitted). Instead, I suggest the rationale set out here in dissent recognizes that Congress is the entity charged with determining the proper punishment for the later, independent federal offense for which Simmons now stands convicted.
Exercising its proper authority, Congress decided that the sentence for a conviction of later violating a federal criminal statute should be enhanced based on the defendant having a prior conviction that falls within the definition Congress chose to write. Congress further decided to define that enhancement in terms of the pri- or conviction being for an “offense” “punishable by a term of more than one year” imprisonment, rather than using language that would require that the defendant personally was subject to punishment for that period. Applying § 802(44)’s plain language when reviewing the nature of a pri- or conviction in no way undermines or second-guesses the prior judgment of North Carolina regarding the earlier independent act that resulted in Simmons’ state conviction and sentence. This approach provides no commentary about North Carolina’s “carefully crafted sentencing scheme.” The later federal court simply looks at the antecedent statutory offense to fulfill its duty under the federal statute authorizing an enhanced punishment for the separate federal crime.
I would also submit the majority’s extrapolation of Carachuri and Rodriquez in this case fosters an unnecessary and burdensome sentencing regime. Instead of simply looking to the written scope of the antecedent statute of conviction, sentencing courts will be constrained to parse multiple variations of hundreds of possibly applicable statutes across the country. The prosecutor, counsel, judge, and citizen will not know where the defendant’s acts fit upon the federal sentencing enhance
The reading of § 802(44) outlined in this dissent is, I proffer, one of plain meaning, common usage, and common sense. It does not suffer the infirmity found by the Carachuri court to be “counterintuitive and unorthodox.” Carachuri,
III.
For the foregoing reasons, I do not find that the Supreme Court’s decisions in Carachuri or Rodriquez require the result set forth in the majority opinion. The plain language of § 802(44) calls for an offense-specific analysis, determining whether a prior conviction is for an “offense punishable by more than one year imprisonment.” As such, we follow the mandate of Congress to look to the maximum authorized punishment for any defendant convicted of the offense. Accordingly, I respectfully dissent and would affirm the judgment of the district court.
Chief Judge Traxler, Judge Wilkinson, Judge Niemeyer, and Judge Duncan join in this dissent.
. As noted by the Supreme Court, the term “aggravated felony” "is unique to Title 8, which covers immigration matters.” Carachuri,
. The majority's analysis of the Act confuses the salient issue by focusing on the permitted sentences for different defendant-specific combinations of criminal history and offense characteristics. While individual defendants’ maximum sentences will differ according to a multitude of variables under the Act, the authorized punishment for violating N.C. Gen. Stat. § 90-95 does not alter absent legislative change; that maximum is fifteen months, which meets the plain language of § 802(44).
Dissenting Opinion
dissenting:
I am in complete agreement with Judge Agee’s thoughtful dissent and write separately only to explain the basis of my conviction that the statutory language must cabin our inquiry. Although I have the greatest respect for the majority’s attempts to grapple with Carachuri, I remain unconvinced that that decision, based on an unrelated, civil statutory scheme, offers any clear direction here. In that sense, it is not unique. As Justice Scalia recently observed, the Supreme Court’s jurisprudence has hardly distilled ACCA’s murky waters. Derby v. United States, — U.S. -,
Here, that text does not ask whether the defendant had a “prior conviction” for which he could be punished by more than one year of imprisonment. To the contrary, it compels us to determine whether the defendant had a prior conviction for “an offense that is punishable” by more than one year of incarceration under 21 U.S.C. § 841(b)(1)(D). Under North Carolina law, Simmons’s Class I felony offense was so punishable. See N.C. Gen.Stat. §§ 15A-1340.17, 90-95(a). In my view, that ends our inquiry.