Opinion
NO. 5:11-CR-87-1BO.
October 27, 2011
ORDER
A sua sponte hearing on dismissal was held before the undersigned on October 27, 2011, in Raleigh, North Carolina. The following written order is entered in support of the judgment entered on that date.
BACKGROUND
Mr. Cozart pleaded guilty pursuant to a plea agreement to one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Mr. Cozart was sentenced by this Court on October 13, 2011. 18 U.S.C. § 922(g)(1) makes it unlawful for any person who has been convicted in any court of a crime "punishable by imprisonment for a term exceeding one year" to "possess in or affecting commerce any firearm or ammunition." Appearing on Mr. Cozart's presentence report is one prior conviction upon which a violation of § 922(g) might rest — on October 21, 2008, Mr. Cozart pleaded guilty to and was convicted of one charge of accessory after the fact to discharge of a firearm into an occupied property. N.C. Gen. Stat. § 14-7; § 14-34.1. Mr. Cozart was sentenced by the Granville County Superior Court to a term of imprisonment of ten to twelve months.
The Court announced Mr. Cozart's sentence following a sentencing hearing on October 13, 2011. A written judgment reflecting the sentence was not, however, entered.
DISCUSSION
In United States v. Simmons, the Fourth Circuit addressed which North Carolina state convictions under the Structured Sentencing Act are felony offenses, holding that the federal sentencing court looks to the "conviction itself" and, if the state sentencing court "never made the recidivist finding necessary" to expose the defendant to a higher sentence, the Government "cannot now rely on such a finding to `set the maximum term of imprisonment.'" 649 F.3d 237, 243 (4th Cir. 2011) (en banc) (citing Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2587 n. 12 (2010)). In specifically overturning its own precedent, the Simmons court held that no longer would federal sentencing courts be required to consider the "maximum aggravated sentence that could be imposed for [a] crime upon a defendant with the worst possible criminal history." United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005). Rather, Simmons directs that the federal court examine the individual defendant, including his prior criminal history and other factors, when determining whether a past crime committed was punishable by a term exceeding one year of imprisonment.Of concern to the court in Simmons was the computation of a federal sentence based upon the hypothetical conduct of a defendant, as opposed to basing the federal sentence on the actual facts and circumstances of the individual defendant before the court. In Harp, which Simmons overturned, the Fourth Circuit had held that, when analyzing a sentencing enhancement triggered by a prior conviction for a crime punishable by imprisonment for a term exceeding one year, "`punishable' is an adjective used to describe `crime'" and "[a]s such, it is more closely linked to the conduct, the crime, than it is to the individual convicted of the conduct." Harp, 406 F.3d at 246. The Harp court went on to find that had Congress "intended to focus on the individual in particular rather than the crime for which the individual was convicted," it could have "used the phrase, `individual punished by imprisonment for a term exceeding one year' or even `individual sentenced for imprisonment for a term exceeding one year.'" Id. (emphasis in original).
In overturning Harp, the Simmons court expressly adopted a different reading of a statute providing for sentencing enhancement based upon conviction of a prior crime "punishable by imprisonment for a term exceeding one year." As indicated by the Simmons dissent, "had Congress intended [the majority's] reading of the statute, it could have defined a `felony drug offense' as an `offense for which the defendant is punished by imprisonment for a term exceeding one year.'" Simmons, 649 F.3d at 246 n. 7 (emphasis added). The majority responded to this interpretation by stating that "[c]ertainly Congress could have been clearer." Id. The majority's failure to reject the dissent's characterization, when considered together with its express concern regarding use of the hypothetical conduct of a defendant when determining the effect of his prior convictions, persuades this Court that only when a defendant has been punished by a term of imprisonment exceeding one year should his prior conviction be considered by a federal court in determining predicate offense conduct.
The Fourth Circuit has applied the Simmons holding not only where at issue are sentencing enhancements based on prior felonies, but also where an actual conviction rests on a defendant's status as a convicted felon. See United States v. White, No. 09-4257, 2011 WL 4008534 (4th Cir. October 20, 2011) (per curiam) (applying Simmons to disqualify a felony conviction used as a predicate conviction under § 922(g)(1)).
Therefore, following Simmons' interpretation of the phrase "punishable by imprisonment for a term exceeding one year", this Court finds that because Mr. Cozart was not actually punished by a sentence in excess of one year, he cannot, for the purposes of federal sentencing or indictment, be found to have been convicted of a prior felony. Mr. Cozart is therefore legally innocent of his offense of conviction under § 922(g).
CONCLUSION
Accordingly, pursuant Rule 35(a) of the Federal Rules of Criminal Procedure, the judgment of conviction and sentence in this matter that was orally imposed on October 13, 2011, is VACATED due to clear error. The indictment against Mr. Cozart is hereby DISMISSED.
SO ORDERED.