United States v. Simmons

ON REHEARING EN BANC

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

JASON EDWARD SIMMONS,

Defendant-Appellant.

NORTH CAROLINA ADVOCATES FOR

JUSTICE; FEDERAL DEFENDERS OF  No. 08-4475

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.



Appeal from the United States District Court

for the Western District of North Carolina, at Asheville.

Lacy H. Thornburg, District Judge.

(1:07-cr-00077-LHT-1)

Argued: May 11, 2011

Decided: August 17, 2011

2 UNITED STATES v. SIMMONS

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 opin-

ion, in which Chief Judge Traxler and Judges Wilkinson, Nie-

meyer, and Duncan joined.

COUNSEL

ARGUED: Andrew Brady Banzhoff, DEVEREUX & BAN-

ZHOFF, Asheville, North Carolina, for Appellant. Matthew

Segal, FEDERAL DEFENDERS OF WESTERN NORTH

CAROLINA, INC., Asheville, North Carolina, for Amici

Supporting Appellant. Amy Elizabeth Ray, OFFICE OF THE

UNITED STATES ATTORNEY, Asheville, North Carolina,

for Appellee. ON BRIEF: Gretchen C. F. Shappert, United

States Attorney, Adam Morris, Assistant United States Attor-

ney, OFFICE OF THE UNITED STATES ATTORNEY,

Charlotte, North Carolina, for Appellee. Christopher C.

Fialko, RUDOLF WIDENHOUSE & FIALKO, Charlotte,

North Carolina, for North Carolina Advocates for Justice,

Amicus Supporting Appellant. Claire J. Rauscher, Executive

Director, Ann L. Hester, Assistant Federal Defender, FED-

ERAL DEFENDERS OF WESTERN NORTH CAROLINA,

INC., Charlotte, North Carolina, for Federal Defenders of

Western North Carolina, Incorporated, Office of the Federal

Public Defender, for the Middle District of North Carolina,

and Office of the Federal Public Defender, for the Eastern

District of North Carolina, Amici Supporting Appellant.

UNITED STATES v. SIMMONS 3

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

After Jason Simmons pled guilty to federal drug traffick-

ing, 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 imprison-

ment 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. Sim-

mons, 340 F. App’x 141 (4th Cir. 2009). The Supreme Court

vacated that judgment and remanded the case to us for "fur-

ther consideration in light of Carachuri-Rosendo v. Holder,"

130 S. Ct. 2577 (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 distrib-

ute at least 100 kilograms of marijuana, the Controlled Sub-

stances Act (CSA) mandates "a term of imprisonment" of at

least five years. 21 U.S.C. § 841(b)(1)(B)(vii). But for offend-

ers 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 indict-

ment charging Simmons with three counts of marijuana traf-

4 UNITED STATES v. SIMMONS

ficking 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 "fel-

ony drug" conviction triggering the ten-year statutory mini-

mum sentence set forth in the CSA. Simmons pled guilty to

the federal charges but contended that his prior North Caro-

lina 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’ imprison-

ment.1 Without the disputed sentencing enhancement, Sim-

mons’s Guidelines range would have been 63-78 months.

In an unpublished opinion, we affirmed Simmons’s sen-

tence, although we acknowledged that Simmons "could not

have received a sentence in excess of twelve months" for his

North Carolina conviction. Simmons, 340 F. App’x at 143.

Subsequently, the Supreme Court vacated our judgment in

this and a number of other cases, remanding the cases to us

for reconsideration in light of Carachuri. See United States v.

Thompson, No. 3:05-CR-294-2, 2010 WL 4236532, *3

(W.D.N.C. Oct. 21, 2010) (collecting cases). A panel of this

Court concluded that Carachuri "does not implicate the anal-

ysis at issue in this case," 635 F.3d at 146-47, and so again

affirmed the judgment of the district court. We then voted to

vacate the panel opinion and rehear the case en banc.

1

The district court imposed concurrent 120-month sentences for each of

the three counts. Two of the three counts charged Simmons with posses-

sion with intent to distribute under 50 kilograms of marijuana, for which

the CSA establishes statutory maximums of ten years for recidivist posses-

sion 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 mini-

mum 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.

UNITED STATES v. SIMMONS 5

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, speci-

fies the class of offense. Id. § 15A-1340.17(a). The Act man-

dates 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 depar-

ture 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)-(a1).

6 UNITED STATES v. SIMMONS

Once the judge identifies the appropriate range, the Act

provides that he must choose the defendant’s minimum sen-

tence from within that range.2 Id. § 15A-1340.17(c). After the

judge chooses a defendant’s minimum sentence, a separate

statutory chart then supplies the defendant’s corresponding

maximum sentence. Id. §§ 15A-1340.17(d), (e). The Act,

unlike the Federal Sentencing Guidelines, prohibits a sentenc-

ing judge from imposing a maximum sentence higher than the

one fixed by the statutory chart. Id. §§ 15A-1340.13(b), (c).

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)(1). Under the Act, a Class I felony is punish-

able by a sentence exceeding twelve months’ imprisonment

only if the State satisfies two conditions. First, the State must

prove (or the defendant must plead to) the existence of aggra-

vating factors sufficient to warrant the imposition of an aggra-

vated sentence. Id. § 15A-1340.16(a). Second, the State must

demonstrate that the defendant possesses fourteen or more

criminal history points, resulting in a "prior record level" of

at least 5. Id. § 15A-1340.14(c)(5). If the State fails to satisfy

either of these conditions, a Class I offender can never receive

more than one year’s imprisonment. Id. §§ 15A-1340.17(c)-

(d).

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

2

In rare cases in which a judge finds the presence of "extraordinary mit-

igating 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.

UNITED STATES v. SIMMONS 7

only 1, the Act established a minimum sentencing range of

four-to-six months’ community punishment (no imprison-

ment) and capped his maximum sentence at eight months’

community punishment (again no imprisonment). Id. §§ 15A-

1340.17(c)-(d); id. §§ 15A-1340.11(1)-(2). In compliance

with these requirements, the state judge did not sentence Sim-

mons 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, 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." 8 U.S.C.

§ 1229b(a)(3). The statute further defines the term "aggra-

vated 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

8 UNITED STATES v. SIMMONS

qualifying "felony" to "a crime for which the ‘maximum term

of imprisonment authorized’ is ‘more than one year.’" Car-

achuri, 130 S. Ct. at 2581 (quoting 18 U.S.C. § 3559(a)).

Thus, at bottom the question presented was whether Carachuri

had been "convicted of" a crime "punishable as a federal fel-

ony" under the CSA –- that is, a crime for which the "maxi-

mum term of imprisonment authorized" under the CSA

exceeds one year. Id. at 2583.

In 2004, Carachuri had received a 20-day sentence for pos-

sessing less than two ounces of marijuana in violation of

Texas law. See id. at 2583. In 2005, he received a 10-day sen-

tence for possessing a Xanax tablet without a prescription,

also in violation of Texas law. Id. at 2583. Although Texas

law permitted an enhanced sentence for recidivist possession,

Texas did not seek to use the 2004 conviction to enhance Car-

achuri’s sentence for his 2005 conviction. Id. at 2583.

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 "re-

ceived 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 sen-

tence 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 imprison-

ment for more than one year, even though he actually

received a sentence of only ten days’ imprisonment. Car-

achuri, 130 S. Ct. at 2587.

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

UNITED STATES v. SIMMONS 9

INA’s use of the phrase "convicted of a[n] aggravated fel-

ony," 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 Car-

achuri 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 argu-

ment 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 Gov-

ernment thus argued that Carachuri’s conviction was for an

"offense"—drug possession—that was potentially "punish-

able" 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 sim-

ple possession.’" Carachuri, 130 S. Ct. at 2581 n.3. But

because "the fact of a prior conviction must still be found . . .

before a defendant is subject to felony punishment," the Court

viewed § 844(a) as containing a "felony simple possession

provision" that is "separate and distinct from the misdemeanor

simple possession offense." Id. Accordingly, the Court held

that Carachuri had been convicted only of the "misdemeanor

simple possession" offense, for which he could have received

a maximum punishment of only one year.

Of course, Carachuri involved use of a predicate convic-

tion for immigration purposes rather than for criminal sen-

tencing. However, in Carachuri the Supreme Court stated that

its "[l]inking" of the "inquiry to the record of conviction com-

10 UNITED STATES v. SIMMONS

ports with how [it] ha[d] categorized convictions" for criminal

sentencing purposes. Id. at 2587 n.12.3 As support for this

statement, the Court cited United States v. Rodriquez, 553

U.S. 377 (2008). In Rodriquez, the Court permitted reliance

on a recidivist enhancement for the purpose of determining

whether a prior state conviction qualified as a predicate for a

federal sentencing enhancement under the Armed Career

Criminal Act (ACCA). Id. at 393. But the Court cautioned

that when a judgment of conviction, charging document, or

plea colloquy "do[es] not show that the defendant faced the

possibility of a recidivist enhancement, it may well be that the

Government will be precluded from establishing that a con-

viction was for a qualifying offense." Id. at 389 (emphasis

added). In Carachuri, the Court went even further, explaining

that in Rodriquez it had "held that a recidivist finding could

set the ‘maximum term of imprisonment,’ but only when the

finding is a part of the record of conviction." 130 S. Ct. at

2587 n.12 (emphasis added).

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 imprison-

ment for a term exceeding one year" and so qualifies as a

predicate felony conviction for purposes of the CSA.

3

Thus, the Carachuri Court itself rejected the Government’s suggestion

in this case, adopted by Judge Duncan in dissent, that the Carachuri analy-

sis applies only in the deportation context. Moreover, the ultimate question

facing the Court in Carachuri was whether Carachuri’s conduct was "pun-

ishable" as a felony under the CSA—the same statute that is at issue here.

See Carachuri, 130 S. Ct. at 2582. That Carachuri analyzed the CSA in

the "deportation context" renders its holding no less binding in the "crimi-

nal context," because, as the Supreme Court has explained, courts "must

interpret the statute consistently" across both contexts. Leocal v. Ashcroft,

543 U.S. 1, 11 n.8 (2004).

UNITED STATES v. SIMMONS 11

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. N.C. Gen.

Stat. §§ 15A-1340.17(c)-(d).

Because the state sentencing court never made the recidi-

vist finding necessary to expose Simmons to a higher sen-

tence, Carachuri teaches that the Government cannot now

rely on such a finding to "set the maximum term of imprison-

ment." 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 possi-

bility 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 hypotheti-

cal 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 argu-

ment that "guidelines systems," which "typically allow a sen-

tencing 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. On the basis of this observa-

tion, the Government argues that Rodriquez forbids us from

relying on the Structured Sentencing Act to "decrease the

maximum term of imprisonment" Simmons could have

served. But the Act does not establish a "guidelines sys-

tem[ ]"; rather, it mandates specific sentences. See State v.

Norris, 630 S.E.2d 915, 917-18 (N.C. 2006). Thus, we do not

rely on the Act to "decrease" the maximum term of imprison-

12 UNITED STATES v. SIMMONS

ment Simmons could have served, but rather to establish that

maximum term of imprisonment. For, unlike the sort of

"guidelines systems" referred to in Rodriquez, no circum-

stances exist under the Structured Sentencing Act in which a

North Carolina judge may "impose a sentence that exceeds

the top" of the "range" set forth in the Act. Rodriquez, 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 distin-

guish the North Carolina" Act from "the recidivism enhance-

ment 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 convic-

tion 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 21

U.S.C. § 841(b)(1). 637 F.3d at 882-83. As in North Carolina,

the "Kansas sentencing structure ties a particular defendant’s

criminal history to the maximum term of imprisonment." Id.

at 884. The Eighth Circuit initially upheld a sentencing

enhancement by looking to the "maximum penalty that could

UNITED STATES v. SIMMONS 13

be imposed for the same crime on other recidivist offenders,"

but the Supreme Court vacated and remanded for reconsidera-

tion in light of Carachuri. Id. at 882-83. Upon reconsidera-

tion, the Eighth Circuit reversed course and held that "where

a maximum term of imprisonment . . . is directly tied to recid-

ivism," the "actual recidivist finding . . . must be part of a par-

ticular defendant’s record of conviction for the conviction to

qualify as a felony." Id. at 884.

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 Car-

achuri, the "mere possibility that [Simmons’s] conduct, cou-

pled 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

that Simmons was actually convicted of such a crime.4 Id. at

2589.

The panoply of procedural protections afforded to offend-

ers facing a potentially aggravated sentence further strength-

ens 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-

4

We recognize that this conclusion is at odds with that of the Sixth Cir-

cuit, which upheld, over Judge Merritt’s dissent, resort to the aggravated

range in calculating an offense’s maximum punishment. See Pruitt, 545

F.3d at 421-22; id. at 426-30 (Merritt, J., dissenting). This holding in

Pruitt, however, preceded Carachuri, in which the Supreme Court

expressly directed courts not to take into account potential facts "outside

of the record of conviction." Carachuri, 130 S. Ct. at 2589.

14 UNITED STATES v. SIMMONS

1340.16(a6); (2) he admits (or a jury finds) the existence of

those factors, id. § 15A-1340.16(a1); 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 130 S. Ct. at

2587-88. There, the Supreme Court concluded that to account

for a hypothetical enhancement –- of which the Government

never provided Carachuri notice—would be to "dismiss these

procedures as meaningless." Id. The same holds true here.

North Carolina prosecutors declined to pursue Simmons as an

aggravated offender, and we will not second-guess their judg-

ment. See id. at 2588 (noting that the application of a sentenc-

ing enhancement "after the fact" based on factors that the

State did not allege would "denigrate the independent judg-

ment of state prosecutors").5

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 recog-

nizes, as it must, that the only other appellate courts to have

5

We note that § 851 (the federal procedural statute analyzed in Car-

achuri) 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 admis-

sion) of aggravating factors and written judicial findings justifying impo-

sition of an aggravated sentence. See id. §§ 15A-1340.16(a1), (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 "au-

thorize prosecutors to exercise discretion when electing whether to pursue

[an] . . . enhancement." Carachuri, 130 S. Ct. at 2587-88.

UNITED STATES v. SIMMONS 15

considered the question have held that Supreme Court prece-

dent 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 Car-

achuri.6 We find neither of these arguments persuasive.

A.

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

18 U.S.C. § 922(g)). We held that "‘punishable’ is an adjec-

tive used to describe ‘crime,’" and that "it is more closely

linked to the conduct, the crime, than it is to the individual

convicted of the conduct." Id. (internal quotation omitted).

Thus, we concluded that a North Carolina conviction is for "a

crime punishable by imprisonment for a term exceeding one

year" if "any defendant charged with that crime could receive

a sentence of more than one year." Id. (emphasis in original).7

6

In a Rule 28(j) letter, the Government contends that McNeill v. United

States, 2011 WL 2175212 (2011), supports its position. McNeill held that

a defendant’s predicate North Carolina drug offenses, for which he had

received 10-year sentences, qualified under ACCA as offenses carrying a

maximum term of imprisonment of ten years, even though those state

offenses did not carry a 10-year maximum at the time of his federal con-

viction. Nothing in McNeill undermines our holding here, for crucial to the

McNeill holding was the fact that "North Carolina courts actually sen-

tenced [McNeill] to ten years in prison." Id. at *4. In contrast, no North

Carolina court "actually sentenced" Simmons to any imprisonment. More-

over, because McNeill’s predicate convictions occurred before the Act’s

enactment, the Court held that the Act did not even apply to those convic-

tions. Id. at *6. Thus, as the Government concedes, the issue of how to

calculate the maximum punishment of an offense under the Act was "not

before the Court" in McNeill.

7

The principal dissent maintains that, had Congress intended our read-

ing of the statute, it could have defined a "felony drug offense" as an "of-

16 UNITED STATES v. SIMMONS

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 recidi-

vism 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 enhance-

ments. Thus, even though the statute setting forth the predi-

cate offense in Carachuri, 21 U.S.C. § 844(a), proscribed

only one type of conduct—"possess[ion of] a controlled sub-

stance" -– the Court held that it created "separate and distinct"

offenses of "misdemeanor simple possession" and "felony

simple possession." Carachuri, 130 S. Ct. at 2581 n.3. It did

so because "the fact of a prior conviction must nevertheless

be found . . . before a defendant is subject" to punishment

exceeding one year’s imprisonment. Id.; see also id. (repeat-

ing that "the fact of a prior conviction must still be found

before a defendant is subject to felony punishment").8

fense for which the defendant is punished by imprisonment for a term

exceeding one year." Certainly, Congress could have been clearer. How-

ever, 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."

8

The principal dissent asserts that it too "looks only at the fact of Sim-

mons’ 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.

130 S. Ct. at 2581 n.3. By contrast, the "prior conviction" to which the dis-

sent "looks" is merely Simmons’s predicate conviction itself. The dissent

completely ignores the fact that Simmons—at the time of that predicate

conviction in 1996—lacked the sort of "prior conviction" that would have

converted the 1996 offense of conviction into a recidivist crime. It is only

by overlooking this absence of a "prior conviction," i.e. a conviction prior

to the 1996 predicate conviction, that the dissent can conclude that Sim-

mons’s predicate conviction was for an "offense" punishable by a sentence

reserved for recidivist possession.

UNITED STATES v. SIMMONS 17

Rodriquez is consistent with this conclusion. There the

Court held that when a "defendant is given a higher sentence

under a recidivism statute," his sentence "is a stiffened pen-

alty for the latest crime, which is considered to be an aggra-

vated offense because [it is] a repetitive one." 553 U.S. at 386

(internal quotation omitted) (emphasis added). In other words,

repetition transforms the underlying criminal conduct into an

aggravated, different "offense." A first-time offender does not

commit such an aggravated, repetitive "offense"; he therefore

cannot be convicted of any offense "punishable" by a term of

imprisonment reserved for repeat offenders. In this case, Sim-

mons’s 1996 North Carolina conviction was for only non-

aggravated, first-time marijuana possession. Accordingly, his

"offense" was not "punishable" by a term of imprisonment

exceeding one year, which is reserved for repeat offenders.

B.

Given these facts, Carachuri and Rodriquez clearly fore-

close reliance on Harp. The Government, while barely men-

tioning 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. Con-

trary to the Government’s contention, the statute in Carachuri

did not create distinctions based "solely on the fact of recidi-

18 UNITED STATES v. SIMMONS

vism"; 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’ imprison-

ment if a defendant has a "prior conviction," and three years’

imprisonment if he has "two or more prior convictions"). Per-

haps 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 punish-

ment provided by the statute) required proof of "the fact of a

prior conviction." 130 S. Ct. at 2581 n.3. The same is true

here. Like the statute at issue in Carachuri, the North Caro-

lina Structured Sentencing Act metes out harsher punishment

only when the prosecution proves "the fact" of a defendant’s

prior convictions. Thus, when used as a predicate for federal

sentencing purposes, the Act creates separate offenses that in

turn yield separate maximum punishments.9

2.

Second, the Government suggests that the Carachuri hold-

ing 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 "re-

cidivist offense" that Carachuri avoided. But as explained

above, Simmons’s "Class I felony" does not qualify as a "re-

9

Contrary to the suggestion of the principal dissent, our holding estab-

lishes 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. From this, it is a simple

matter to refer to the statutory table provided by the Structured Sentencing

Act and compute the applicable maximum punishment.

UNITED STATES v. SIMMONS 19

cidivist 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 sen-

tence 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 "‘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 (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 fed-

eral 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 corre-

sponded to such a fictional federal crime; the Government’s

argument therefore relied on a "hypothetical to a hypotheti-

cal." Id. (internal quotation marks omitted).

The inquiry here is simpler, because 21 U.S.C.

§ 841(b)(1)(B) does not require comparison of Simmons’s

10

The principal dissent errs in asserting that this "state-to-federal offense

‘extrapolation’ analysis" explains the Court’s "look at the specific charac-

teristics of Carachuri’s conduct." Rather, this "extrapolation analysis"

required only that the Court assess whether Carachuri’s "state offense . . .

proscribe[d] conduct punishable as a felony under federal law." Lopez,

549 U.S. at 60 (emphasis added). Thus, what the dissent characterizes as

the "Lopez analysis" focuses on the predicate offense, not on the "specific

characteristics" of the defendant’s conduct. The Carachuri Court looked

to those "specific characteristics" because it had to determine the nature

of Carachuri’s predicate "offense." In doing so, the Court concluded that

Carachuri’s predicate offense (like Simmons’s here) was simple, not recid-

ivist, drug possession. See Carachuri, 130 S. Ct. at 2581 n.3.

20 UNITED STATES v. SIMMONS

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

hypotheticals 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, 549 U.S. at 55-56. In Carachuri the Court simply

took issue with the specific character of the Government’s

second hypothetical—the consideration of "facts not at issue

in the crime of conviction . . . to determine whether

Carachuri-Rosendo could have been charged with a federal

felony." Carachuri, 130 S. Ct. at 2588 (emphasis omitted).

Such reliance on "facts not at issue in the crime of conviction"

runs afoul of Carachuri, regardless of how many hypotheti-

cals pervade the overall inquiry. Accordingly, because no

findings of recidivism or aggravation appear in Simmons’s

state record of conviction, those enhancements may not be

considered in determining whether Simmons’s offense consti-

tutes a "felony drug offense" under the CSA.

3.

Third, the Government insists that Simmons’s prior convic-

tion, 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 pro-

vided 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 Sim-

mons’s crime worthy of no imprisonment—making it in one

sense even less serious than Carachuri’s crime. See Car-

achuri, 130 S. Ct. at 2580 (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

UNITED STATES v. SIMMONS 21

judge, merely because the federal court might "expect" a more

serious punishment.

Indeed, it is the Government’s approach—requiring a fed-

eral 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, "coun-

terintuitive 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 pharma-

cist’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 pun-

ishment, see N.C. Gen. Stat. §§ 90-113.52(c), 90-113.56(b),

15A-1340.23(c)—as a predicate offense "punishable" by

nearly two decades of imprisonment. See id. §§ 90-113.56(b)

(providing that a third-time offender commits a Class I fel-

ony), 14-7.1 & 14-7.6 (permitting a "habitual felon" convicted

for a Class I felony to be punished as a Class C felon), 15A-

1340.17(c), (e) (fixing the maximum punishment for an

aggravated and recidivist Class C felony at 228 months’

imprisonment).

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, with-

out written parental authorization, commits a Class A1 misde-

meanor 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 mis-

demeanor into a Class I felony if performed "in association

with[ ] any criminal street gang"), 14-7.1, 14-7.6 (converting

22 UNITED STATES v. SIMMONS

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 hypothetical sentencing

enhancements "after the fact" in a manner that would "deni-

grate the independent judgment of state prosecutors to execute

the laws" of their states. 130 S. Ct. at 2588. No less than the

Texas prosecutors in Carachuri, the North Carolina legisla-

ture deserves our deference here. And that legislature has cho-

sen to adopt a strictly regimented sentencing scheme that

requires sentencing judges to "effectively tailor[ ] the statu-

tory maximum punishment available to each individual defen-

dant." Pruitt, 545 F.3d at 420. We cannot upend this scheme

by lumping all defendants—and virtually all crimes—into the

same category for the purposes of federal sentencing.

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

11

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,

340 F. App’x at 144-45. The panel properly rejected this argument. The

CSA establishes a strict five-year statute of limitations governing chal-

lenges to prior convictions, see 21 U.S.C. § 851(e), and Simmons first

raised this argument over a decade after his 1996 conviction.

UNITED STATES v. SIMMONS 23

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, 131 S. Ct. 2858, 2860 (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 21 U.S.C. § 841(b)(1)(D). Under North

Carolina law, Simmons’s Class I felony offense was so pun-

ishable. See N.C. Gen. Stat. §§ 15A-1340.17, 90-95(a). In my

view, that ends our inquiry.

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 (2008), and Carachuri-Rosendo v.

Holder, 130 S. Ct. 2577 (2010) ("Carachuri"). Cf. Maj. op. at

7. 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 21

U.S.C. § 841(b)(1)(D) and would affirm the district court’s

judgment that Simmons’ prior North Carolina state conviction

constituted a "felony drug offense" as defined in 21 U.S.C.

§ 802(44).

24 UNITED STATES v. SIMMONS

I.

The proper starting point is the relevant statutory language.

Jimenez v. Quarterman, 555 U.S. 113, ___, 129 S. Ct. 681,

685 (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 (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 omit-

ted). Twenty-one U.S.C. § 841(b)(1)(D) provides that any

person convicted of possession with intent to distribute less

than 50 kilograms of marijuana "after a prior conviction for

a felony drug offense has become final, shall be sentenced to

a term of imprisonment of not more than 10 years . . . ." As

defined by Congress, a "felony drug offense" is "an offense

that is punishable by imprisonment for more than one year

under any law of the United States or of a State . . . ." 21

U.S.C. § 802(44). Thus, in order for Simmons to be subject to

the enhanced sentencing provisions of § 841(b)(1)(D), he

must have "a prior conviction for" "an offense that is punish-

able by imprisonment for more than one year."

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 anal-

ysis. 406 F.3d at 246 (Punishable "is more closely linked to

the conduct, the crime, than it is to the individual convicted

of the conduct." (quoting United States v. Jones, 195 F.3d

205, 207 (4th Cir. 1999))).

As more fully explained below, the ratio decidendi of nei-

ther Carachuri nor Rodriquez alter this common sense read-

ing of the clear terms of § 802(44). That statute thus requires

UNITED STATES v. SIMMONS 25

examining whether the statutory offense — not the particular

defendant’s conduct — is "punishable" by more than one year

of imprisonment. See Jimenez, 129 S. Ct. at 685 ("It is well

established that, when the statutory language is plain, we must

enforce it according to its terms."). We must apply the statute

as Congress has written it regardless of how other terms in

other statutes may be construed. United States v. Ron Pair

Enters., 489 U.S. 235, 241 (1989) ("The task of resolving the

dispute over the meaning of [the statute] begins where all

such inquiries must begin: with the language of the statute

itself. In this case it is also where the inquiry should end, for

where, as here, the statute’s language is plain, the sole func-

tion of the courts is to enforce it according to its terms.")

(internal citation and quotation marks omitted).

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 particu-

lar rather than the crime for which the individual was

convicted. Instead of the phrase "individual con-

victed . . . of a crime punishable by imprisonment

for a term exceeding one year," Congress could have

used the phrase, "individual punished by imprison-

ment for a term exceeding one year" or even "indi-

vidual sentenced for imprisonment for a term

exceeding one year."

195 F.3d at 207 (first two emphases added). Similarly, the

construction propounded by the majority rewrites § 802(44) to

define "felony drug offense" not as "an offense that is punish-

able by imprisonment for more than one year," but as, for

example, "an offense for which the defendant is punished by

imprisonment for more than one year" or "an offense for

which the defendant is actually subject to punishment by

imprisonment for more than one year." This result fails to

give effect to the statute as written, and thus usurps the proper

26 UNITED STATES v. SIMMONS

role of the Congress. See La. Pub. Serv. Comm’n v. FCC, 476

U.S. 355, 376 (1986) ("As we so often admonish, only Con-

gress can rewrite [a] statute.").

While other statutes written differently and covering differ-

ent 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 not-

ing, the issue we resolve here is not one of constitutional man-

date, 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 individu-

ally 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). Sim-

mons did not contend in the district court, or at any time dur-

ing 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. Gen.

Stat. § 90-95(a) is a Class I felony and a sentence of up to fif-

teen months’ incarceration is authorized for its violation. N.C.

Gen. Stat. § 15A-1340.17. Consequently, Simmons’ convic-

tion 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, 406 F.3d 247. As an initial matter,

the fact that the Supreme Court remanded this case for recon-

sideration in light of Carachuri is not a basis upon which that

conclusion can rest.

UNITED STATES v. SIMMONS 27

In ordering remand, the Supreme Court did not determine

the merits of this case. A remand indicates only that interven-

ing 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 (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 cer-

tainly possible that the Carachuri-Rosendo case has no rele-

vance to this case at all. It’s just not the same." (Panel Oral

Arg. 16:32.) With respect for the position taken by my col-

leagues 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 this distinc-

tion is not a dispositive one in and of itself. What is disposi-

tive, though, is that the immigration statutes interpreted by the

Supreme Court in Carachuri differ in critical respects from

the statutes at issue in the case at bar.

Facing deportation, Carachuri sought to apply for discre-

tionary cancellation of removal, something for which he was

ineligible if he had previously been "convicted of a[n] ‘aggra-

vated felony.’"1 See 130 S. Ct. at 2583 (citing 8 U.S.C.

§ 1229b(a)(3)) (brackets in original). The relevant inquiry,

then, was whether either of his two Texas convictions for mis-

demeanor simple drug possession, was an "aggravated felony"

under 8 U.S.C. § 1229b(a)(3).

1

As noted by the Supreme Court, the term "aggravated felony" "is

unique to Title 8, which covers immigration matters." Carachuri, 130 S.

Ct. at 2585. This term appears in no other place in the U.S. Code.

28 UNITED STATES v. SIMMONS

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. Gon-

zales, 549 U.S. 47 (2006), "[u]nless a state offense is punish-

able 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 pos-

session 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 21 U.S.C. § 844(a) did not

define separate offenses based on the presence or lack of

recidivism, it would nonetheless "view § 844(a)’s felony sim-

ple possession provision as separate and distinct from the mis-

demeanor simple possession offense that section also

proscribes." Id. at 2581 n.3. Consequently, the Carachuri

Court concluded only "recidivist simple possession" offenses

"might, conceivably, be an ‘aggravated felony.’" Because

Carachuri’s Texas conviction was not for a recidivist simple

possession offense, the hypothetical federal Lopez corollary

offense was not an "aggravated felony" for purposes of 8

U.S.C. § 1229b(a)(3). Carachuri thus did not fall within the

statute’s prohibition against seeking withholding of removal.

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 sen-

UNITED STATES v. SIMMONS 29

tence exceeding eight months’ community service punish-

ment. Maj. op. at 11. 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 "extrap-

olation" analysis in Carachuri, the Supreme Court had to look

at the specific characteristics of Carachuri’s conduct underly-

ing the Texas conviction. And because the Court was con-

cerned with how Carachuri was actually charged and the

characteristics of his conduct for purposes of determining

whether the hypothetical extrapolation would work, the

Court’s inquiry was necessarily defendant-specific.

By contrast, the issue in the case at bar is whether the North

Carolina offense for which Simmons was convicted was "pun-

ishable" 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 defen-

dant 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’ statu-

tory offense. Cf., Maj. op. at 11 (quoting Carachuri, 130 S.

Ct. at 2586). After that determination is made, the circum-

stances surrounding Simmons’ conviction and the state prose-

cutor’s charging decision are no longer relevant to the

analysis.

Instead, our focus should be on "the terms of the provisions

and the ‘commonsense conception’ of those terms." Car-

achuri, 130 S. Ct. at 25785. Section 802(44) directs us to the

offense prohibited by N.C. Gen. Stat. § 90-95 — rather than

to a specific defendant charged thereunder — to determine

whether a violation of that statute is one for which punish-

ment of more than one year is authorized. The inquiry here

could not be more different from the hypothetical extrapola-

tion and defendant-specific inquiry contained in the Car-

achuri analysis. At bottom, the dispositive question in this

30 UNITED STATES v. SIMMONS

case is whether Simmons’ conviction is for violating a statute

that provides for punishment exceeding 12 months’ incarcera-

tion. Because a violation of N.C. Gen. Stat. § 90-95(a) is pun-

ishable by imprisonment of up to 15 months, the answer to

that query is a simple "yes."2 Cf. N.C. Gen. Stat. § 15A-

1340.17.

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 deter-

mining "whether a prior state conviction constitutes a predi-

cate permitting the application of a federal sentencing

enhancement." Maj. op. at 16 (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 per-

missible 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 theoriz-

ing 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

2

The majority’s analysis of the Act confuses the salient issue by focus-

ing on the permitted sentences for different defendant-specific combina-

tions 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 fif-

teen months, which meets the plain language of § 802(44).

UNITED STATES v. SIMMONS 31

imprisonment for more than one year. It does. There is thus

no reason to speculate what Simmons’ conduct also could

have constituted if prosecuted by a separate sovereign under

that sovereign’s different statute.

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 § 802(44), this approach promotes unifor-

mity and consistency because (absent future legislative

action) a particular state offense would or would not always

be a predicate offense under the Armed Career Criminal Act

("ACCA") for future federal sentencing purposes. Because the

inquiry is offense-specific, all that is needed are the relevant

North Carolina statutes: N.C. Gen. Stat. § 90-95, the offense,

and N.C. Gen. Stat. § 15A-1340.17, the statutorily authorized

sentence for that offense. We would not be required to look

at Simmons’ record any further than to identify the offense of

conviction.

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." 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 defen-

32 UNITED STATES v. SIMMONS

dant 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 Car-

achuri’s Texas conviction to complete the Lopez analysis, no

such parsing is needed here.

Significantly, although the Supreme Court had the opportu-

nity 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 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 immi-

gration law purposes." Carachuri, 130 S. Ct. at 2587. Particu-

larly relevant for our case, the Supreme Court did not address

this argument on its textual merits. To quote the Court, the

reason it rejected the Government’s "punishable" language

argument was that in performing the Lopez analysis, "the cir-

cumstances of Carachuri-Rosendo’s prosecution were not

identical to those hypothesized by the Government." Id. That

is, the facts in Carachuri did not align with the Government’s

argument and could not "be reconciled with the more concrete

guidance of [§ 1229b(a)(3)], which limits the Attorney Gener-

al’s cancellation authority only when the noncitizen has actu-

ally been ‘convicted of a[n] aggravated felony’ — not when

he merely could have been convicted of a felony but was not."

Id. The Supreme Court thus had the clear opportunity to

embrace the reasoning of the majority opinion, but did not.

Carachuri and the case at bar are further distinguished on

the charging decisions incident to the underlying state convic-

tions. Carachuri had been convicted of simple drug possession

under Texas law. The Supreme Court noted that Texas law

authorized a sentencing enhancement for such a conviction

only if the prosecutor charged the defendant as having been

previously convicted of that offense or one of a similar class.

UNITED STATES v. SIMMONS 33

Although the Texas prosecutor could have charged Carachuri

as a recidivist and sought such an enhancement, the prosecu-

tor elected not to do so, and instead charged him only for sim-

ple possession. Thus, under the relevant Texas provisions by

which Carachuri was charged and convicted, the conviction

was for simple possession without a recidivist charge.

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 oth-

erwise 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 Govern-

ment’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 imprison-

ment 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 necessar-

ily 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 § 802(44) and not to

Simmons’ state offense of conviction: a crime which the

North Carolina statute provides is "punishable" for up to fif-

teen months’ imprisonment.

34 UNITED STATES v. SIMMONS

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 sen-

tencing decision under Gen. Stat. § 90-95. N.C. Gen. Stat.

§ 15A-1340.16 and § 15A-1340.17. A defendant is convicted

of the same offense — N.C. Gen. Stat. § 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 presump-

tive (or, indeed, mitigated) offense.

N.C. Gen. Stat. § 90-95 constitutes one offense under North

Carolina law; the distinguishing factors of criminal history

and offense characteristics become relevant only at sentenc-

ing, when deciding a particular defendant’s sentencing range.

They have no bearing on the inquiry here, that is, whether the

statutory offense itself is punishable by more than one year

imprisonment.

The majority opinion also contends its approach is appro-

priate because it is consistent with the "panoply of procedural

protections afforded to offenders facing a potentially aggra-

vated 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 13-14

and 22; see id. at 30 (arguing this approach "makes a mockery

UNITED STATES v. SIMMONS 35

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 Sim-

mons’ state conviction. The North Carolina process of charg-

ing, convicting, and punishing Simmons was long decided

and wholly independent of a later-in-time charge by the fed-

eral 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 sen-

tencing judge, under a guidelines regime or a discre-

tionary 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 "of-

fense" "punishable by a term of more than one year" impris-

onment, rather than using language that would require that the

defendant personally was subject to punishment for that

36 UNITED STATES v. SIMMONS

period. Applying § 802(44)’s plain language when reviewing

the nature of a prior conviction in no way undermines or

second-guesses the prior judgment of North Carolina regard-

ing the earlier independent act that resulted in Simmons’ state

conviction and sentence. This approach provides no commen-

tary about North Carolina’s "carefully crafted sentencing

scheme." The later federal court simply looks at the anteced-

ent 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 Car-

achuri 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, sen-

tencing 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

enhancement spectrum without delving into the particular acts

underlying long-settled proceedings. The sentencing approach

resulting from the majority opinion’s reading creates an

unworkable rule that unnecessarily complicates the already

complex arena of federal criminal sentencing.

The reading of § 802(44) outlined in this dissent is, I prof-

fer, 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, 130 S.

Ct. at 2585 (internal quotation marks and citation omitted).

Neither does it argue "for a result that the English language

tells us not to expect." Id. Perhaps that type of result is what

Justice Souter should have presaged in Lopez when he noted

that "Congress, like ‘Humpty Dumpty,’ has the power to give

words unorthodox meanings." Id. at 2585 (quoting Lopez, 549

U.S. at 34). Clearly, so do courts.

UNITED STATES v. SIMMONS 37

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 pun-

ishment for any defendant convicted of the offense. Accord-

ingly, 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.