UNITED STATES of America, Plaintiff-Appellee, v. Jason Edward SIMMONS, Defendant-Appellant.
No. 08-4475.
United States Court of Appeals, Fourth Circuit.
Argued: May 11, 2011. Decided: Aug. 17, 2011.
649 F.3d 237
North Carolina Advocates For Justice; Federal Defenders of Western North Carolina, Incorporated; Office of the Federal Public Defender, for the Middle District of North Carolina; Office of the Federal Public Defender, for the Eastern District of North Carolina, Amici Supporting Appellant.
At Science Applications, Ms. Dellinger found herself in the same position as the trainees in Ensley. There was no legitimate impediment between her and the imminent assumption of her job duties. Cf. Ensley, 877 F.2d at 1208 (reciting that the trainees could, in theory, have demonstrated themselves unqualified, but observing that “no person, who had completed the training, was not subsequently hired“). Ensley is, of course, binding upon subsequent panels, and it requires us to recognize the validity of Ms. Dellinger‘s FLSA retaliation claim, just as we recognized as valid the trainees’ claim for wage payments under the Act.
III.
For all the foregoing reasons, I am convinced that Ms. Dellinger, an employee within the meaning of the FLSA, has pleaded a legally sufficient retaliation claim against Science Applications. Inasmuch as the majority holds to the contrary, I respectfully dissent.
Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING, GREGORY, SHEDD, DUNCAN, AGEE, DAVIS, KEENAN, WYNN, and DIAZ, Circuit Judges.
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
DIANA GRIBBON MOTZ, Circuit Judge:
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 We affirmed in an unpublished opinion.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, 340 Fed.Appx. 141 (4th Cir.2009). The Supreme Court vacated that judgment and remanded the case to us for “further consideration in light of Carachuri-Rosendo v. Holder,” ___ U.S. ___, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010). A panel of this court then held that Carachuri did not require any change in our prior holding. See United States v. Simmons, 635 F.3d 140 (4th Cir.2011). We voted to rehear the case en banc, and for the reasons that follow, we now vacate Simmons‘s sentence and remand for further proceedings consistent with this opinion.
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.
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
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.”
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.
Once the judge identifies the appropriate range, the Act provides that he must choose the defendant‘s minimum sentence from within that range.2
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.
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).
III.
Nevertheless, the Government correctly notes that if United States v. Harp, 406 F.3d 242 (4th Cir.2005), controls here, Simmons cannot prevail in challenging his sentence. In Harp, we held that “to determine whether a conviction is for a crime punishable by a prison term exceeding one year” under North Carolina law, “we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.” Id. at 246 (emphasis omitted). In our original 2009 unpublished opinion resolving Simmons‘s appeal, we followed Harp and held that Simmons was convicted of an offense “punishable” by more than one year‘s imprisonment. The Supreme Court has vacated that judgment and ordered us to reconsider the case in light of its subsequent precedent. After consideration of that precedent, we now conclude that Harp no longer remains good law.
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.”
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.”
Although the Fifth Circuit had accepted this argument, see Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir.2009), the Supreme Court unanimously rejected it. Focusing on the INA‘s use of the phrase “convicted of a[n] aggravated felony,” the Supreme Court reasoned that the “text thus indicates that we are to look to the conviction itself as our starting place.” Carachuri, 130 S.Ct. at 2586. Turning to Carachuri‘s 2005 conviction, and noting that it contained “no finding of the fact of his prior drug offense,” the Court held that Carachuri was “not actually convicted” of an offense punishable by a term of imprisonment exceeding one year. Id. at 2586-87 (internal quotation omitted).
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
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 “[l]inking” of the “inquiry to the record of conviction comports with how [it] ha[d] categorized convictions” for criminal sentencing purposes. Id. at 2587 n. 12.3
As support for this statement, the
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, 130 S.Ct. at 2586. Examination of Simmons‘s 1996 state conviction demonstrates that he committed a Class I felony, but as a first-time offender possessed a prior record level of only 1, and thus could not have received a sentence exceeding eight months’ community punishment.
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, 130 S.Ct. at 2587 n. 12 (internal quotation marks omitted). Indeed, Simmons‘s conviction exemplifies the hypothetical to which the Supreme Court alluded in Rodriquez, i.e. a case “in which the records that may properly be consulted do not show that the defendant faced the possibility of a recidivist enhancement.” Rodriquez, 553 U.S. at 389. In such a situation, the Supreme Court has held that the Government is “precluded from establishing that a conviction was for a qualifying offense” on the basis of such a hypothetical enhancement. Id.; see also Carachuri, 130 S.Ct. at 2587 n. 12 (characterizing this as a holding).
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.” 553 U.S. at 390,
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, 637 F.3d 881 (8th Cir.2011); United States v. Pruitt, 545 F.3d 416 (6th Cir.2008).
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 130 S.Ct. at 2587 n. 12.
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
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, 130 S.Ct. at 2586, and his conviction makes clear that he was neither charged with nor convicted of an aggravated offense, and that he therefore could not receive a sentence exceeding one year‘s imprisonment. As in Carachuri, the “mere possibility that [Simmons‘s] conduct, coupled with facts outside the record of conviction, could have authorized” a conviction of a crime punishable by more than one year‘s imprisonment cannot and does not demonstrate
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,
These protections closely resemble the “mandatory notice and process requirements,” contained in
IV.
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. Nevertheless, the Government insists that Harp remains good law and that we should distinguish Carachuri.6 We find neither of these arguments persuasive.
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, 406 F.3d at 246 (quoting
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, 130 S.Ct. at 2581 n. 3 (noting that the “Constitution does not require treating recidivism as an element of the offense“). But Carachuri rejected this conclusion for purposes of analyzing whether a prior state conviction constitutes a predicate permitting the application of a federal sentencing enhancement. There, the Supreme Court made clear that when a state statute provides a harsher punishment applicable only to recidivists, it creates different “offenses” for the purpose of federal sentencing enhancements. Thus, even though the statute setting forth the predicate offense in Carachuri,
Rodriquez is consistent with this con-
B.
Given these facts, Carachuri and Rodriquez 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
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
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 “‘proscribe[d] conduct’ of [his] state offense” was “punishable as a felony under federal law.” Carachuri, 130 S.Ct. at 2588 (quoting Lopez v. Gonzales, 549 U.S. 47, 60, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006)). In other words, the INA required resort to a hypothetical—an assessment of whether Carachuri, by committing a state crime, had committed a “fictional federal felony.” 10 Id. But the Government went further, asking the Court to consider whether state prosecutors could have charged Carachuri with conduct that in turn could have corresponded to such a fictional federal crime; the Government‘s argument therefore relied on a “hypothetical to a hypothetical.” Id. (internal quotation marks omitted).
The inquiry here is simpler, because
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, 130 S.Ct. at 2583 (noting that Carachuri received prison time). Surely well-established federalism principles do not permit a federal court to reject North Carolina‘s judgment as to the seriousness of a North Carolina crime, prosecuted in a North Carolina court and adjudicated by a North Carolina judge, merely because the federal court might “expect” a more serious punishment.
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, “counterintuitive and unorthodox.” Carachuri, 130 S.Ct. at 2585 (internal quotation omitted). For example, the Government‘s approach would dictate that a federal court treat a pharmacist‘s first-time failure to check a minor‘s identification before selling Sudafed—a misdemeanor for which a North Carolina offender faces a maximum of only 45 days’ community punishment, see
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.
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.11
VACATED AND REMANDED.
DUNCAN, Circuit Judge, 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. ___, 131 S.Ct. 2858, 2860, 180 L.Ed.2d 903 (2011) (Scalia, J., dissenting) (characterizing the Supreme Court‘s ACCA decisions as “incomprehensible to judges“). In such circumstances, it is particularly compelling that we navigate those waters by the plain light of the statutory text.
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
AGEE, Circuit Judge, dissenting:
The majority opinion correctly identifies the issue on appeal in this case: whether the analysis set forth in United States v. Harp, 406 F.3d 242 (4th Cir.2005), remains good law in light of the Supreme Court‘s decisions in United States v. Rodriquez, 553 U.S. 377, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008), and Carachuri-Rosendo v. Holder, ___ U.S. ___, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010) (”Carachuri“). Cf. Maj. op. at 241. Because I do not find that either decision compels a result contrary to the plain language of the relevant statutes, I find no error in imposition of an enhanced sentence under
I.
The proper starting point is the relevant statutory language. Jimenez v. Quarterman, 555 U.S. 113, 118, 129 S.Ct. 681, 685, 172 L.Ed.2d 475 (2009) (“As with any question of statutory interpretation, our analysis begins with the plain language of the statute.“) (citation omitted); Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993) (“The starting point in interpreting a statute is its language, for if the intent of Congress is clear, that is the end of the matter.“) (quotation and citation omitted). Twenty-one
Critical to the analysis is the fact that Congress chose in
As more fully explained below, the ratio decidendi of neither Carachuri nor Rodriquez alter this common sense reading of the clear terms of
Had Congress intended a different result, it could have written
While other statutes written differently and covering different circumstances (as in Carachuri) may be read in other ways,
The sentence Simmons actually received or was individually subject to under
II.
The majority concludes the Supreme Court‘s decisions in Rodriquez and Carachuri invalidate our prior reading of
In ordering remand, the Supreme Court did not determine the merits of this case. 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, 533 U.S. 656, 666 n. 6, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (emphasis added). The purpose of the remand is served by considering the record anew, taking into consideration the potentially relevant case law. As Justice O‘Connor, sitting by designation with the original remand panel, explained in oral argument, “it‘s certainly possible that the Carachuri-Rosendo case has no relevance to this case at all. It‘s just not the same.” (Panel Oral Arg. 16:32.) With respect for the position taken by my colleagues in the majority, I am simply not persuaded that either Carachuri or Rodriquez dictates a contrary position from our earlier decision.
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.‘”1 See 130 S.Ct. at 2583 (citing
In making that determination, the Supreme Court navigated a “maze of statutory cross-references” to determine whether Carachuri‘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. 130 S.Ct. at 2581. The need for this hypothetical projection of the state offense into a federal corollary offense arose because under Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), “[u]nless a state offense is punishable as a federal felony[,] it does not count” as an “aggravated felony” for immigration law purposes. Id. at 55; see also 130 S.Ct. at 2582.
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].” 130 S.Ct. at 2581 (emphasis omitted). And in footnote three, the Court observed that although
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, 130 S.Ct. at 2586). After that determination is made, the circumstances surrounding Simmons’ conviction and the state prosecutor‘s charging decision are no longer relevant to the analysis.
Instead, our focus should be on “the terms of the provisions and the ‘common-sense conception’ of those terms.” Carachuri, 130 S.Ct. at 2585. Section 802(44) directs us to the offense prohibited by
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, 130 S.Ct. at 2581 n. 3, and Rodriquez, 553 U.S. at 386). Instead, I submit this approach recognizes that the defendant-specific inquiries in Carachuri and Rodriquez do not present the same question at issue here, where the statute directs us to determine how an offense is punishable, rather than how a particular defendant is or could be punished. That is, Congress chose to set the permissible punishment by the parameters of the state statutory offense, not in light of an offender‘s individual conduct.
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,
Contrary to the majority opinion‘s implication, the approach I propose does not implicate, let alone run afoul of the principle expressed in Carachuri 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.” 130 S.Ct. at 2586. Indeed, it is the majority‘s approach that looks beyond the statute of conviction to postulate whether any additional factors can support additional findings as to the nature and substance of Simmons’ conduct. In contrast, the approach applying an offense-based inquiry looks solely to the statute underlying the conviction and how that offense is punishable and nothing else. Consequently, in addition to being consistent with the plain language of
The majority opinion puts great weight on footnote 3 of Carachuri 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.” 130 S.Ct. 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 Carachuri to verify what it means for an offense to be “punishable” as a felony, it did not do so. The Government argued in Carachuri that “the only statutory text that matters is the word ‘punishable’ in
Neither does Rodriquez‘s discussion of recidivist factors negate my proposed reading of
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.
128 S.Ct. at 1792. I would submit it is the majority opinion, contrary to Rodriquez, that looks to the sentencing factors under the Act to determine the scope of
There is no separate recidivist possession charge under North Carolina law. The 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
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
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 prior 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
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
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
Chief Judge Traxler, Judge Wilkinson, Judge Niemeyer, and Judge Duncan join in this dissent.