Vacated by Supreme Court, June 21, 2010
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4475
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JASON EDWARD SIMMONS,
Defendant – 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 14, 2009 Decided: August 4, 2009
Before AGEE, Circuit Judge, HAMILTON, Senior Circuit Judge, and
C. Arlen BEAM, Senior Circuit Judge of the United States Court
of Appeals for the Eighth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Andrew Brady Banzhoff, Asheville, North Carolina, for
Appellant. Adam Christopher Morris, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF:
Gretchen C. F. Shappert, United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On July 5, 2007, police officers searched the home of Jason
Simmons and seized approximately forty-four pounds of marijuana
and $256,566 in cash. A grand jury in the Western District of
North Carolina subsequently indicted Simmons on three criminal
counts: (1) conspiracy to distribute at least 100 kilograms of
marijuana in violation of 21 U.S.C. § 841(a)(1) and § 846, (2)
possession of at least five kilograms of marijuana with intent
to distribute in violation of 21 U.S.C. § 841(a)(1)(b)(1)(D),
and (3) possession of at least twenty kilograms of marijuana
with intent to distribute in violation of 21 U.S.C. §
841(a)(1)(b)(1)(A)(v). Prior to trial the government filed an
information pursuant to 21 U.S.C. § 851, notifying Simmons that
it intended to rely on his January 29, 1996 North Carolina state
conviction (“1996 conviction”) for possession with intent to
sell or deliver marijuana in violation of North Carolina General
Statute 90-95(a) as the basis for seeking an enhanced sentence
under 21 U.S.C. § 841(b)(1)(D). 1 Simmons pled guilty to all
1
21 U.S.C. § 841(b)(1)(D) provides that in a case involving
the possession with intent to distribute less than fifty
kilograms of marijuana, “any person [who] commits such a
violation after a prior conviction for a felony drug offense has
become final, such person shall be sentenced to a term of
imprisonment of not more than 10 years . . . .”
2
three counts of the indictment without the benefit of a plea
agreement.
Prior to sentencing, Simmons filed a written response to
the government’s § 851 information asserting that the 1996
conviction did not qualify as a “felony drug offense” as defined
in 21 U.S.C. § 802(44) and, even if it did, that conviction had
been obtained in violation of his Sixth Amendment right to
effective counsel. 2 At the sentencing hearing, Simmons
reiterated the arguments made in his written submission but
conceded that a North Carolina state court had denied habeas
relief related to the 1996 conviction. The district court
rejected Simmons’ argument that the 1996 conviction was not a
“felony drug offense” for purposes of applying the mandatory
minimum sentences authorized in 21 U.S.C. § 841(b)(1)(D) and
found Simmons’ Sixth Amendment collateral attack to be
meritless. The district court sentenced Simmons to 120 months
imprisonment on each count, to be served concurrently.
2
21 U.S.C. § 802(44) defines the term “felony drug offense”
as:
an offense that is punishable by imprisonment for more
than one year under any law of the United States or of
a State or foreign country that prohibits or restricts
conduct relating to narcotic drugs, marihuana,
anabolic steroids, or depressant or stimulant
substances.
(Emphasis added.)
3
Simmons now appeals the district court’s judgment and we
have jurisdiction pursuant to 18 U.S.C. § 3742. For the reasons
that follow, we affirm.
I.
Simmons’ 1996 conviction resulted from his guilty plea to a
Class I felony under North Carolina law. The state court gave
Simmons a suspended sentence of six to eight months for the 1996
conviction, which was within the presumptive range for Simmons’
offense and criminal history pursuant to the statutory
sentencing structure set forth in N.C. Gen. Stat. § 15A-
1340.17(c). However, pursuant to N.C. Gen. Stat. § 15A-
1340.17(d), the maximum sentence for a defendant with the worst
criminal history convicted of a Class I felony with aggravating
factors is fifteen months.
Simmons maintains that he was not subject to the mandatory
minimum sentence for his current drug convictions because under
North Carolina’s sentencing structure he could not have received
a sentence in excess of twelve months for his 1996 conviction
because no aggravating factors were present in his case. Thus,
Simmons concludes, the 1996 conviction cannot be a “felony drug
offense” under 21 U.S.C. § 802(44) because he was not subject to
imprisonment for “more than one year” under the particular facts
of his case.
4
The Government responds that this case is controlled by our
decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005),
in which we examined the same North Carolina statutes at issue
here, § 15A-1340.17(c) and (d). In Harp, we held that “to
determine whether a conviction is for a crime punishable by a
prison term exceeding one year . . . we consider the maximum
aggravated sentence that could be imposed for that crime upon a
defendant with the worst possible criminal history.” 406 F.3d
at 246.
Simmons acknowledges Harp but argues that it does not
control the outcome of his case. This is so, he argues, because
“we know conclusively that no aggravating circumstance was
present” in his case and thus he could not have received a
sentence greater than 12 months. Appellant’s Br. at 9.
However, the defendant in Harp also argued “that because the
specific facts of his case did not provide any basis for
imposition of a sentence exceeding one year, his prior
conviction was not for an offense punishable by a term of
imprisonment of more than one year” for purposes of applying the
relevant United States Sentencing Guideline, § 4B1.2(b). 406
F.3d at 246. “He explain[ed] that although the maximum
aggravated punishment for possession with the intent to
distribute marijuana, a Class I felony, [was] 15 months, the
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maximum non-aggravated punishment [was] only 12 months.” Id.
We explicitly rejected that argument:
[T]his court has already rejected such an individual
analysis in United States v. Jones, 195 F.3d 205 (4th
Cir. 1999), in construing statutory language
essentially identical to the language of § 4B1.2(b).
In Jones, we held, in the context of a felon-in-
possession-of-firearm conviction, see 18 U.S.C.A. §
922(g)(1) (West 2000), that a prior North Carolina
conviction was for “a crime punishable by imprisonment
for a term exceeding one year,” id., if any defendant
charged with that crime could receive a sentence of
more than one year. See Jones, 195 F.3d at 206-07.
In so doing, we reasoned:
[I]n § 922(g)(1), “punishable” is an
adjective used to describe “crime.” As
such, it is more closely linked to the
conduct, the crime, than it is to the
individual convicted of the conduct.
Congress could have written § 922(g)(1)
differently had it intended to focus on the
individual in particular rather than the
crime for which the individual was
convicted. Instead of the phrase,
“individual convicted . . . of a crime
punishable by imprisonment for a term
exceeding one year,” Congress 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. at 207 (internal quotation marks omitted)
(alterations in original). Thus, to determine whether
a conviction is for a crime punishable by a prison
term exceeding one year, Jones dictates that we
consider the maximum aggravated sentence that could be
imposed for that crime upon a defendant with the worst
possible criminal history. See id. at 206-08.
Harp, 406 F.3d at 246.
6
Our precedent in Harp thus directly controls the result in
this case where the same North Carolina statutes are at issue.
It is well established that “a panel of this court cannot
overrule, explicitly or implicitly, the precedent set by a prior
panel of this court. Only the Supreme Court or this court
sitting en banc can do that.” Scotts Co. v. United Indus.
Corp., 315 F.3d 264, 271-72 n.2 (4th Cir. 2002) (citation
omitted).
Simmons contended at oral argument that the United States
Supreme Court’s decision in United States v. Rodriguez, 128 S.
Ct. 1783 (2008), which was decided after he was sentenced,
implicitly overrules the reasoning in Harp and thus it is no
longer controlling. We disagree. If anything, the Supreme
Court’s analysis in Rodriguez is in harmony with the ratio
decidendi of our prior holdings in Harp and Jones, which require
us to “consider the maximum aggravated sentence that could be
imposed for that crime upon a defendant with the worst possible
criminal history.” Harp, 406 F.3d at 246; Jones, 195 F.3d at
207 (reconciling the language of section 922(g)(1) “with North
Carolina's sentencing scheme by viewing the offense statutory
maximum as the statutory maximum for the crime, regardless of
the prior criminal record status of the defendant”); see also
United States v. Hill, 539 F.3d 1213, 1221 (10th Cir. 2008)
(holding that “Section 922(g)(1), like the statute at issue in
7
Rodriquez, demands that courts focus on the maximum statutory
penalty for the offense, not the individual defendant”). But see
United States v. Pruitt, 545 F.3d 416, 422 (6th Cir. 2008)
(finding that “[t]he district court erred in failing to account
for [the defendant’s] prior record level at the time of his
predicate convictions in determining whether those convictions”
were “punishable by death or imprisonment for a term exceeding
one year” for purposes of applying United States Sentencing
Guideline § 4B1.1.).
The relevant federal statutory provision in the case at
bar, 21 U.S.C. § 802(44), does not define a felony drug offense
in terms of an individual defendant’s particular sentencing
factors, but as “an offense that is punishable by imprisonment.”
This statutory definition is indistinguishable from the 18
U.S.C. § 922(g)(1) provision at issue in Jones and Hill for “a
crime punishable by imprisonment,” and identical to the
Guidelines provision in Harp — “an offense . . . punishable by
imprisonment.” Thus, based on our clear precedent in Harp,
Simmons’ contention that he was not convicted of an “offense
that is punishable by imprisonment for more than one year” under
the applicable North Carolina statute is without merit.
8
II.
Simmons also argues that the district court erred in
failing to provide a hearing (in violation of 21 U.S.C. §
851(c)(1)) so he could establish that counsel in his 1996
conviction provided ineffective assistance. 3 However, as the
Government points out, any failure to provide such a hearing
would constitute harmless error because Simmons’ collateral
attack on the prior conviction was plainly barred by the five-
year statute of limitations in 21 U.S.C. § 851(e). 4
The Government’s information in this case was filed on
August 17, 2007. Simmons’ prior conviction occurred on January
29, 1996, well beyond the five-year time frame for a collateral
challenge to the validity of that conviction. Simmons argues
that he is not subject to the five-year limitation because he
was unaware of the substantial constitutional defects in his
prior conviction until consulting with counsel in the present
3
Simmons alleges that his counsel’s representation at that
time was constitutionally deficient because he erroneously
informed Simmons that pleading guilty was the only way to avoid
jail time when, in fact, he was only subject to probation.
4
The statute provides that
No person who stands convicted of an offense under
this part may challenge the validity of any prior
conviction alleged under this section which occurred
more than five years before the date of the
information alleging such prior conviction.
21 U.S.C. § 851(e).
9
case. Simmons fails, however, to produce authority supporting
any such notice requirement in circumstances such as these, and
we find none. Therefore, even if we assume Simmons properly
requested a hearing to challenge the prior conviction (an issue
we need not decide), any error in not conducting such a hearing
was harmless as a matter of law.
III.
For the reasons set forth above we affirm the judgment of
the district court.
AFFIRMED
10