# Opposition Brief — Simmons v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2010
- **Citation:** 561 U.S. 1001

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1331%3A2. Public record. Not legal advice.