The Fourth Circuit’s 8-5 en banc decision in United States v. Simmons holds that the Fourth Circuit’s earlier decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005), “no longer remains good law” in light of a Supreme Court decision interpreting a different statute.
At issue in Simmons and Harp is how to determine whether a particular offense under North Carolina law is “punishable by imprisonment for a term exceeding one year,” and therefore qualifies as a predicate felony conviction under the federal Controlled Substances Act. To simplify (perhaps oversimplify): The old approach (in Harp) looked to the offense itself and asked whether any defendant prosecuted for that offense could be eligible for punishment of more than one year. The new approach (in Simmons) looks to the maximum punishment for which the offender was eligible based on the particular facts that dictated where the offender’s sentence fell in North Carolina’s structured sentencing scheme.
Simmons’s prior offense of possession with intent to sell no more than ten pounds of marijuana was a Class 1 felony under North Carolina law. A Class 1 felony is punishable by a sentence exceeding one year’s imprisonment if certain conditions are satisfied. Those conditions were not satisfied with respect to Simmons’s prior offense. The Fourth Circuit held, consequently, that Simmons was not eligible for the 10-year statutory minimum under the federal Controlled Substances Act.
Judge Motz wrote the majority opinion, which was joined by Judges King, Gregory, Shedd, Davis, Keenan, Wynn, and Diaz. Judge Agee authored the principal dissent, joined by Chief Judge Traxler and Judges Wilkinson, Niemeyer, and Duncan. Judge Duncan also authored a solo dissent.
The decision appears noteworthy for a few reasons.
First, because the decision deals with the effect of a prior North Carolina drug offense on a subsequent federal sentence, the case has immediate implications for other, previously entered sentences that remain pending on direct appeal. For example, the Simmons decision, dated Wednesday August 17, 2011, was the basis for ordering resentencing in United States v. Morton, a drug conspiracy case issued by a separate panel on Thursday August 18.
Second, the decision has an interesting procedural history. Two years ago, a Fourth Circuit panel rejected Simmons’ claim that his prior offense did not trigger the federal mandatory minimum imposed by the district court. The Supreme Court GVR’d (granted, vacated, and remanded) for reconsideration in light of Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010), which addressed a distinct, but related issue under federal immigration law. On remand, a Fourth Circuit panel (consisting of Judge Duncan, Judge Agee, and retired Justice Sandra Day O’Connor) unanimously reinstated the earlier decision. The unanimity of this opinion did not prevent the full court from voting to rehear en banc, thereby vacating the panel decision.
Third, other circuits are apparently dealing with similar issues, perhaps presaging additional Supreme Court attention even though Judge Motz notes that the en banc court’s approach accords with decisions of the Sixth and Eighth Circuits. As Douglas Berman has pointed out, this decision “provides yet another example of how messy federal sentencing law is when it comes to the legal treatment/impact of prior state convictions.”