Opposition Brief — Simmons v. United States

Supreme Court, U.S.

FILED

APR 23 2010

No. 09-676

OFFICE OFTHE CLERK

Jn the Supreme Court of the United States

JASON EDWARD SIMMONS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FO. A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

FLENA KAGAN

Solicitor General

Counsel of Record

LANNY A, BREUER

Assistant Attorney General

DANIEL S. GOODMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs @usdo).gov

(202) 314-2217

QUESTION PRESENTED

Whether, in determining whether a prior state of

fense was “punishable by imprisonment for more than

one year” for purposes of the definition of “felony drug

offense” under the Controlled Substances Act, 21 U.S.C.

$02(44), a court should consider the offense-specific

maximum sentence or the lower maximum sentence for

the particular offender under a mandatory state deter

minate sentencing scheme.

TABLE OF CONTENTS

Page

OE ee Pee Pie ne eee ee eee ae l

Ee oa a ae se ER Ee eed SCNT Oe Ob EDS eke CR o l

Se. evans ke PSR E EEOC ES DT EASED OO 4 RO OS “ee

RP eee ee ent ee ee 6

Conclusion 12

TABLE OF AUTHORITIES

Cases:

Apprendi v. New Jersey, 530 U.S. 466 (2000) .......... 1}

Blakely v. Washington, 542 U.S. 296 (2004) ...... 1]

Bruxton v. United States, 500 U.S. 344 (1991) .......... 10

Carr v. United States, 129 S. Ct. 54 (2008) ..............8

Jones Vv. United States, 129 S. Ct. 158 (2008) ............8

Patrick v. United States, 128 S. Ct. 2498 (2008) ......... &

State v. Lucas, 548 S.E.2d 712 (N.C. 2001), overruled

in part on other grounds by State v. Allen,

615 S.E.2d 256 (N.C. 2005) . . . Q

United States v. Booker, 543 U.S. 220 (2005) ........... 10

United States v. Harp, 406 F.3d 242 (4th Cir.),

cert. denied, 546 U.S. 919 (2005) ................ oe

United States v. Hill, 5389 F.3d 1213 (10th Cir. 2008) .... 11

United States v. Jones, 195 F.3d 205 (4th Cir. 1999),

cert. denied, 529 U.S. 1029 (2000) .................. 1]

l/nited States v. Murillo, 422 F.3d 1152 (9th Cir.

2005), cert. denied, 547 U.S. 1119 (2006) ............ 1]

United States v. Prurtt, 545 F.3d 416 (6th Cir. 2008) .. 9, 10

United States v. Rodriguez, 553 U.S. 377

(LUT)

IV

Case—Continued: Pape

Watson v. United States, 128 S. Ct. 2498 (2008) a

Constitution, statutes and guideline:

U.S. Const. Amend. VI ........ i lI

Armed Career Criminal Act of 1984, 18 U.S.C. 924(e)

18 U.S.C. 924(e)(2KKAGI) ........-... ors :¢

LS Ul Baas SEG bees cccsccce: ..8

Controlled Substances Act, 21 U.S.C. 801 et seq. ..... se

21 UU GE Sb ee baecee. vith ee Get OG & 10

21 U.S.C. 841(a)(1) ...... 7 Pree oS

21 UDA CORUM hectic cceccess Fis ..3

21 U.S.C. 841(b)1)(D) .... Z, 3, 4

Sl Ue eae htt eee. ere

ABRR RGR 0 ee Dee o, 4

18 U.S.C. G2Al@M1) .. eee oe 8 10

N.C. Gen. Stat. (2009):

S LD Ask Ae rere hee tccees ) 3

§ 15A-13840.17(c)..... 7 8

§ 15A-1340.17(d) 3,9

Rig fe i Are 3

§ 90-95(a)C1) ; 5

© ea ec ccecteceesceens 3

United States Sentencing Guideline § 4B1.1 9 10

Jn the Supreme Court of the CGnited States

No. 09-676

JASON EDWARD SIMMONS, PETITIONER

/

LINITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI!

TO THE UNITED STATES COURT OF APPEAL:

FOR THE FOURTH CIRCUTT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-10)

is not published in the /'ederal Reporter but is reprinted

in 3840 Fed. Appx. 141.

JURISDICTION

The judgment of the court of appeals was entered on

August 4, 2009. A petition for rehearing was denied on

September 1, 2009 (Pet. App. 24). The petition for a writ

of certiorari was filed on November 25, 2009. The juri:

diction of this Court is invoked under 28 U.S.C. 1254(1)

STATEMENT

l’ollowing the entry of a guilty plea in the United

States District Court for the Western District of North

Carolina, petitioner was convicted on one count of con

spiracy to distribute at least 100 kilograms of marijuana,

(1)

in violation of 21 U.S.C. 841(a)(1) and (b)(1)CB) and 846;

one count of possession of at least five kilograms of mar

ijuana with the intent to distribute it, in violation of 21

U.S.C. 841(a)(1) and (b)(1)(D); and one count of posses-

sion of at least 20 kilograms of marijuana with the intent

to distribute it, in violation of 21 U.S.C. 841(a)(1) and

(b)\(1)(D). Petitioner was sentenced to concurrent terms

of 120 months of imprisonment on each count, to be fol

lowed by eight years of supervised release. The court of

appeals affirmed. Pet. App. 1-10

1. On July 2, 2007, co-defendant Samuel Isaac Wolfe

purchased approximately 5.35 kilograms of marijuana

from petitioner and observed approximately 50 pounds

of high-grade marijuana stored in two duffel bags in peti

tioner’s residence in Chandler, North Carolina. Presen

tence Investigation Report (PSR) 1 16. Three days

later, agents executed a federal search warrant at peti-

tioner’s residence and found 44 pounds of marijuana,

$256,566 in cash, a machine for counting currency, digi

tal scales, vacuum sealers and bags, and books and

DVDs relating to the cultivation of marijuana. Pet. App

2; PSR 949 17-18. Wolfe told agents that he had pur

chased more than 200 pounds of marijuana from peti-

tioner since 2005 and that petitioner had several! other

customers. /d. 122. The agents determined that peti-

Lioner was responsible for more than 110 kilograms of

marijuana, based solely on the amount of marijuana

ceized from his residence and the amount that he sold to

Wolfe. /d. 124

2. Under the Controlled Substances Act (CSA), 2]

U.S.C. 801 et seqg., a person who is con\ icted of conspir

acy to possess 100 kilograms or more of marijuana with

the intent to distribute it is subject to a statutory mini

mum sentence of five years of imprisonment. 21 U.S.C.

841(b)(1)(B) and 846. That minimum sentence increases

to ten years, however, if the defendant had previously

been convicted of a “felony drug offense,” 21 U.S.C.

841(b)(1)(B), which is defined as, znter alia, a state drug

offense “punishable by imprisonment for more than one

year.” 21 U.S.C. 802(44). The United States must file

an information stating the prior conviction before a

court may impose the enhanced sentence based on a

prior “felony drug offense.” 21 U.S.C. 851

Similarly, a person who is convicted of possessing

less than 50 kilograms of marijuana with the intent to

distribute it is subject to a statutory maximum sentence

of five years of imprisonment, but that maximum sen

tence increases to ten years if the defendant had previ

ously been convicted of a “felony drug offense.” 21

U.S.C. 841(b)(1)(D). Again, the United States must file

an information stating the prior conviction for the en

hanced sentence to apply. 21 U.S.C. 851

Linder North Carolina’s Structured Sentencing Act,

a particular offender's sentencing range is determined

by three factors: the class of the offense of conviction,

the offender's criminal history, and the presence of ag

gravating or mitigating factors. See N.C. Gen. Stat

§ 15A-1340.17 (2009). For a Class I felony such as pos

session of a schedule VI controlled substance (mari

juana) with the intent to sell it, the maximum term

of imprisonment is 15 months. See 7d. § 15A-1340.17(¢c)

and (d):; see also 2d. 88 90-94(1), 90-95(a)(1) and (b)(1)

3. A grand jury in the Western District of North

Carolina charged petitioner with conspiring to possess

100 or more kilograms of marijuana with the intent to

distribute it, in violation of 21 U.S.C. &841(a)(1) and

(b)(1)(B) and 846 (Count 1); possessing at least five kilo

grams of marijuana with the intent to distribute it, in

violation of 21 U.S.C. 841(a)(1) and (b)(1)(D) (Count 2);

and possessing at least 20 kilograms of marijuana

with the intent to distribute it, in violation of 21 U.S.C.

$41(a)(1) and (b)(1)(D) (Count 3). The government then

filed an information pursuant to 21 U.S.C. 851, alleging

that petitioner had a prior conviction for a felony drug

offense— namely, his 1996 conviction in North Carolina

state court for possession of marijuana with the intent to

distribute it. Information 1; Pet. App. 2-3. Petitioner

pleaded guilty to the three counts in the indictment

without a plea agreement. Pet. App. 3, 12.

The PSR determined that petitioner’s 1996 North

Carolina conviction qualified as a “felony drug offense”

and that petitioner therefore faced a statutory manda-

tory minimum sentence of ten years of imprisonment on

his drug conspiracy conviction and a maximum sentence

of ten years of imprisonment on the possession with in-

tent to distribute counts. PSR 11 44, 64. Asa result, the

PSR determined that petitioner’s advisory Guidelines

range was 120 months of imprisonment. /d. 11 64-65.

Petitioner objected to the use of his prior drug con-

viction to enhance his penalty for the federal convictions

on two grounds. First, he contended that his prior drug

conviction could not be used to enhance his sentence

because it was obtained in violation of his right to the

effective assistance of counsel. PSR Addendum, Obj. 3.

Second, he contended that his prior offense was not a

“felony drug offense” under 21 U.S.C. 802(44) because

he could not have received a sentence in excess of one

year under the state sentencing guidelines for that of-

fense, based on his particular criminal record and the

absence of any aggravating factors. Resp. to Gov’t Bill

of Information 4-6; 4/24/08 Sent. Tr. 10. The district

court overruled petitioner’s objections to the sentence

enhancement and sentenced him to concurrent terms

of 120 months of imprisonment on each count, to be fol-

lowed by eight years of supervised release. 4/24/08

sent. Tr. 9, 13, 19, 21-22; Pet. App. 14-16 (Judgment).

4. The court of appeals affirmed in an unpublished,

per curiam opinion. Pet. App. 1-10. As relevant here,

the court rejected petitioner’s argument that his 1996

felony conviction under North Carolina law was not a

“felony drug offense” within the meaning of 21 U.S.C.

802(44) because he was subject to a maximum term of

imprisonment of one year or less on that conviction un-

der North Carolina’s determinate-sentencing scheme.

Pet. App. 4-9. Relying on its earlier decisions in United

States v. Jones, 195 F.3d 205 (4th Cir. 1999), cert. de-

nied, 529 U.S. 1029 (2000), and United States v. Harp,

406 F.3d 242 (4th Cir.), cert. denied, 546 U.S. 919 (2005),

the court held that petitioner’s prior conviction qualifies

as a prior felony drug offense because a “defendant

charged with that crime could receive a sentence of

more than one year.” Pet. App. 6 (quoting Harp, 40¢

I’.3d at 246). In so holding, the court rejected peti-

tioner’s contention that the relevant maximum sentence

is the maximum sentence the particular defendant could

receive, rather than the maximum aggravated sentence

any defendant could receive. /d. at 5-7.

The court of appeals added that this Court’s decision

in United States v. Rodriquez, 553 U.S. 377 (2008), sup-

ported its conclusion, because Rodriquez requires courts

to look at the maximum statutory penalty for the of-

fense, not at the maximum penalty for an individual de-

fendant. Pet. App. 7-8.

The court of appeals also rejected petitioner’s argument that his

1996 conviction could not be used to enhance his sentence because he

6

ARGUMENT

Petitioner renews his contention (Pet. 4-7) that, in

determining whether a prior state conviction was “pun-

ishable by imprisonment for more than one year” for

purposes of the “felony drug offense” definition in 2

U.S.C. 802(44), the relevant maximum sentence is the

maximum for the particular offender under a mandatory

state sentencing guidelines scheme. The court of ap-

peals’ decision is correct, and there is no disagreement

in the circuits on that question. Moreover, this Court

has repeatedly denied review on the issue. Further re-

view is therefore unwarranted.

1. The court of appeals correctly held that, for pur-

poses of the “felony drug offense” definition in the CSA,

21 U.S.C. 802(44), the relevant maximum is the maxi-

mum sentence provided by statute for the offense,

rather than the lower maximum for the particular of-

fender under a mandatory state sentencing guidelines

scheme. Section 802(44) defines a “felony drug offense”

as a drug “offense that is punishable by imprisonment

for more than one year” under state, federal, or foreign

law. 21 U.S.C. 802(44). That language directs a court to

look to the maximum term of imprisonment for the of-

fense; it does not contemplate a different maximum term

of imprisonment for every offender.

Contrary to petitioner’s contention (Pet. 5-6), this

Court’s recent decision in United States v. Rodriquez,

553 U.S. 377 (2008), strongly supports the conclusion

that the relevant maximum sentence for purposes of the

received ineffective assistance of counsel. Pet. App. 9-10. The court

explained that such a collateral attack was “plainly barred by the five-

year statute of limitations in 21 U.S.C. § 851(e).” fd. at. 9. Petitioner

does not challenge that holding before this Court.

7

“felony drug offense” definition is the offense-specific

maximum for any offender sentenced under a guidelines

sentencing system. In Rodriquez, the Court held that a

state drug-trafficking offense had a “maximum term

of imprisonment of ten years or more,” and therefore

qualified as a “serious drug offense” for purposes

of the Armed Career Criminal Act of 1984 (ACCA),

18 U.S.C. 924(e)(2)(A)(il), because the defendant was a

repeat offender and the maximum term of imprisonment

for the offense was ten years for such offenders.

Rodriquez, 553 U.S. at 383-384.

As is relevant here, the Court specifically rejected

the contention that, for purposes of the definition of

“serious drug offense,’ the applicable “maximum term

of imprisonment” for the prior offense was the maximum

to which the defendant had been subject under the

State of Washington’s mandatory sentencing guidelines

scheme. Rodriquez, 553 U.S. at 390-392. The Court

reasoned that “the top sentence in a guidelines range is

generally not really the ‘maximum term .. . pre-

scribed by law’ for the ‘offense’ because guidelines sys-

tems typically allow a sentencing judge to impose a sen-

tence that exceeds the top of the guidelines range under

appropriate circumstances.” /d. at 390. Rodriquez thus

focused on the offense-specific statutory maximum,

rather than a lower sentence that a guidelines system

might provide.

The Court reinforced that point by noting that “the

concept of the ‘maximum’ term of imprisonment or sen-

tence prescribed by law was used in many [federal] stat-

utes that precuted the enactment of ACCA * * * and

in all those statutes the concept necessari!v referred to

the maximum term prescribed by the relevant criminal

statute, not the top of a sentencing guideline range.”

8

Rodriquez, 558 U.S. at 391. In light of that “established

pattern,” the Court concluded that “Congress meant for

the concept of the ‘maximum term of imprisonment’ pre-

seribed by law for an ‘offense’ to have [the] same mean-

ing in ACCA.” /d. at 392. There is no reason to distin-

guish between Section 924(e)(2)(4){ii) and the provision

at issue here, Section 802(44): In either subsection, the

relevant maximum sentence for a prior offense is the

offense-specific maximum.

For that reason, since Rodriquez, this Court has de-

nied several petitions in which defendants contended

that their prior convictions for drug offenses un-

der North Carolina law were not “punishable by impris-

onment for more than one year” under the CSA,

21 U.S.C. 802(44), because they had been subject to

maximum terms of imprisonment for those offenses of

one year or less under North Carolina’s mandatory de-

terminate-sentencing scheme. See Jones v. United

States, 129 8S. Ct. 158 (2008) (No. 07-11421); Patrick v.

United States, 128 S. Ct. 2498 (2008) (No. 07-6955); Wat-

son Vv. United States, 128 8S. Ct. 2498 (2008) (No.

07-6692); see also Stewart v. United States, cert. denied,

No. 09-745 (Feb. 22, 2010) (denying petition in which the

defendant claimed that a prior offense was not “punish-

able by imprisonment for a term exceeding one year”

under the ACCA, 18 U.S.C. 924(e)(2)(B), because he was

subject to a maximum sentence of ten months under

North Carolina’s mandatory sentencing guidelines

scheme); Carr v. United States, 1298. Ct. 54 (2008) (No.

07-10646) (denying petition in which the defendant

claimed that a prior offense was not “punishable by im-

prisonment for a term exceeding one year” under the

federal felon-in-possession statute, 18 U.S.C. 922(¢)(1),

because he was subject to a maximum sentence of 12

9

months for that offense under Washington’s mandatory

sentencing guidelines scheme). The same resuit is war-

ranted here.

2. a. Petitioner claims, however, that the holding in

Rodriquez does not apply to the North Carolina sentenc-

ing scheme because “there is no factor or circumstance

that can increase a person’s sentence outside of the sen-

tencing block” in North Carolina’s guidelines and be-

cause “there is no ‘statutory maximum’ other than the

sentence set forth in the sentencing grid.” Pet. 6. But

Rodriquez does not hold, and nothing in the CSA sug-

gests, that the maximum term of imprisonment under a

mandatory determinate-sentencing scheme like North

Carolina’s must be found for the specifie offender as

opposed to any offender eligible to be sentenced for that

offense under the guidelines. Indeed, North Carolina

itself treats “the maximum sentence [as] that which

could be imposed if the defendant were in the highest

criminal history category and the offense were aggra-

vated.” State v. Lucas, 548 S.E.2d 712, 730 (N.C. 2001),

overruled in part on other grounds by State v. Allen, 615

S.E.2d 256 (N.C. 2005). Moreover, despite petitioner’s

attempt to distinguish North Carolina’s sentencing

scheme, N.C. Gen. Stat. § 15A-1340.17(d) expressly sets

forth maximum sentences for Class I felony offenses.

Thus, the logie of Rodriquez applies in this context.

b. Petitioner also contends (Pet. 6-7) that the deci-

sion below conflicts with United States v. Pruitt, 545

F.3d 416 (6th Cir. 2008). In Pruiti, the Sixth Cireuit

considered whether a defendant’s prior convictions for

drug offenses under North Carolina law were “punish-

able by * * * imprisonment for a term exceeding one

year” under the federal career-offender guideline, Sen-

tencing Guideline § 4B1.1. 545 F.3d at 417-418. The

10

court held that a prior state conviction qualifies only “if

the state court could have sentenced a hypothetical de-

fendant with the same prior record level as the defen-

dant’s prior record level to a term exceeding one year.”

/d. at 419. The court reasoned that, under a mandatory

determinate-senteneing scheme like North Carolina’s, a

defendant’s “state prior record level dictates his sen-

tencing exposure” and therefore “must be considered in

determining whether [that defendant’s} convictions were

‘punishable’ for a term exceeding one year.” /d. at 423.

Review is not warranted based solely on Pruitt,

which addressed the proper construction of Sentencing

Guideline § 4B1.1 rather than the CSA, 21 U.S.C.

802(44). Congress has charged the Sentencing Commis-

sion with “periodically reviewling] the work of the

courts, and * * * makling] whatever clarifying revi-

sions to the Guidelines conflicting judicial decisions

might suggest.” Braxton v. United States, 500 U.S. 344,

348 (1991); see United States v. Booker, 543 U.S. 220,

263 (2005) (“The Sentencing Commission will continue

to collect and study appellate court decisionmaking. It

will continue to modify its Guidelines in light of what it

learns, thereby encouraging what it finds to be better

sentencing practices.”). Because the Sentencing Com-

mission can amend the Guidelines to eliminate a conflict

or correct an error in their construction, this Court ordi-

narily will not review decisions interpreting and apply-

ing the Guidelines. See Braxton, 500 U.S. at 347-349.

That practice is particularly appropriate here be-

cause three courts of appeals have held that the relevant

maximum sentence for a predicate felony under

18 U.S.C. 922(¢)(1)—which contains language similar to

that in Section 802(44)—is the offense-specific maximum

sentence, not the lower maximum sentence for the par-

1]

ticular defendant under a mandatory state sentencing

guidelines scheme. See United States v. Hill, 539 F.3d

1213, 1218-1221 (10th Cir. 2008); United States v.

Murillo, 422 F.3d 1152, 1153-1154 (9th Cir. 2005), cert.

denied, 547 U.S. 1119 (2006); l/nited States v. Jones, 195

F.3d 205, 206-207 (4th Cir. 1999), cert. denied, 529 U.S.

1029 (2000). In Hill, for example, the court concluded

that “[flocusing on the maximum sentence for the predi-

cate crime of conviction,” rather than the defendant’s

particular guidelines maximum, “is mandated by the

Supreme Court's analysis in Rodriquez.” 539 F.3d at

1220. The court noted that Rodriquez rejected the prop-

osition that, under the ACCA, mandatory guidelines

systems that cap sentences can decrease the maximum

term of imprisonment. /bid. There is thus no conflict on

any statutory issue, and the Sixth Circuit itself may con-

fine Pruitt to the Guidelines context, in which the Com-

mission, rather than this Court, is well-positioned to

address the matter.

ec. Finally, petitioner contends (Pet. 8-13) that treat

ing his 1996 offense as a “felony drug offense” for pur-

poses of enhancing his federal offense would violate the

Sixth Amendment because any facts that would make

him eligible for a sentence of more than one year were

not found by the jury beyond a reasonable doubt in the

state proceeding. He is mistaken. The actual punish-

ment that a sentencing court may constitutionally im-

pose on a particular defendant under Apprendi v. New

Jersey, 530 U.S. 466 (2000), and Blakely v. Washington,

542 U.S. 296 (2004), is a separate question from whether

a crime is punishable by imprisonment for more than

one year under the Controlled Substances Act. The

Court’s decision in Rodriquez makes that clear. The

Court. noted that guidelines systems do not define the

|?

maximum term for an offense because “guidelines sys

tems typically allow a sentencing judge to impose a sen

tence that exceeds the top of the guidelines range under

appropriate circumstances.” 553 U.S. at 390. In so stat-

ing, the Court necessarily rejected the view that Con-

gress had implicitly foreseen Apprendi and Blakely and

had intended the procedural rules in those decisions to

limit its understanding of a “maximum term.” Accord

ingly, as explained at pp. 6-8, supra, the maximum sen-

tence available for the offense is not limited by the cir-

cumstances of the particular offender. Petitioner as-

serts no disagreement in the circuits on this point. Fur-

ther review is therefore unwarranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN

Solicitor General

LANNY A. BREUER

Assistant Attorney General

DANIEL S. GOODMAN

Attorne Y

APRIL 2010