UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4482
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DERRICK LAMONT SUMMERS,
Defendant – Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 09-10329)
Submitted: September 8, 2011 Decided: September 13, 2011
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, Counsel
of Record, Beth Blackwood, Research and Writing Attorney,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte,
North Carolina, for Appellant. Edward R. Ryan, Acting United
States Attorney, Mark A. Jones, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2004, Derrick Lamont Summers pled guilty to
possessing a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1) (2006), and was
sentenced to seven years in prison with three years’ supervised
release. Summers’ supervised release was revoked shortly after
he was released from prison, and the district court sentenced
him to thirty months in prison, to be followed by thirty months
of supervised release.
Summers timely appealed, asserting that under United
States v. Rodriquez, 553 U.S. 377, 389 (2008) (cautioning 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,” the government might
be precluded from establishing that the conviction is a
qualifying offense triggering application of the sentencing
enhancement), the district court erred when it classified one of
his supervised release violations as a Grade A violation and,
thus, erred in calculating his sentencing range. According to
Summers, since the maximum prison term he faced for the North
Carolina offense underlying the violation was ten months, the
offense was not “punishable by a term of imprisonment exceeding
one year.” See U.S. Sentencing Guidelines Manual
§ 7B1.1(a)(A)(1)(ii) (2008).
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We affirmed the district court’s judgment, rejecting
Summers’ argument as contrary to United States v. Harp, 406 F.3d
242, 246 (4th Cir. 2005) (holding that in order to “determine
whether a conviction is for a crime punishable by a prison term
exceeding one year, . . . [the court] consider[s] the maximum
aggravated sentence that could be imposed for that crime upon a
defendant with the worst possible criminal history”), and
rejecting Summers’ argument that Rodriquez implicitly overruled
Harp. See United States v. Summers, 361 F. App’x 539, 541 (4th
Cir. 2010) (No. 09-4482) (unpublished). Summers filed a
petition for writ of certiorari with the Supreme Court, and the
Supreme Court vacated this court’s judgment affirming the
criminal judgment and remanded the case to this court for
further consideration in light of Carachuri-Rosendo v. Holder,
130 S. Ct. 2577 (2010). We vacate Summers’ sentence and remand
the matter to the district court for resentencing.
This court will affirm a sentence imposed after
revocation of supervised release if it is within the applicable
statutory maximum and is not plainly unreasonable. See United
States v. Crudup, 461 F.3d 433, 437, 439–40 (4th Cir. 2006). We
first assess the sentence for reasonableness, “follow[ing]
generally the procedural and substantive considerations that we
employ in our review of original sentences . . . with some
necessary modifications to take into account the unique nature
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of supervised release revocation sentences.” Id. at 438–39; see
United States v. Finley, 531 F.3d 288, 294 (4th Cir. 2008) (“In
applying the ‘plainly unreasonable’ standard, we first
determine, using the instructions given in Gall [v. United
States, 552 U.S. 38, 51 (2007)], whether a sentence is
‘unreasonable.’”). Only if a sentence is found procedurally or
substantively unreasonable will we “decide whether the sentence
is plainly unreasonable.” Crudup, 461 F.3d at 439; see Finley,
531 F.3d at 294. A sentence is “plainly unreasonable” if it
“run[s] afoul of clearly settled law.” United States v.
Thompson, 595 F.3d 544, 548 (4th Cir. 2010).
We conclude that the district court procedurally erred
when it sentenced Summers. We recently held in United States v.
Simmons, ___ F.3d ___, 2011 WL 3607266, *3 (4th Cir. Aug. 17,
2011), that a North Carolina offense may not be classified as a
felony based upon the maximum aggravated sentence that could be
imposed upon a repeat offender if the individual defendant was
not eligible for such a sentence. Thus, if Summers could not
have received a sentence greater than ten months for the North
Carolina crime underlying the challenged violation, the district
court procedurally erred when it calculated Summers’ sentencing
range and his sentence is, thus, procedurally unreasonable.
Because Summers objected to his sentencing range
calculation in the district court, we must proceed to determine
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whether his sentence is “plainly” unreasonable. See Thompson,
595 F.3d at 546. The analysis of “plainly” in “plainly
unreasonable” is the same as that of “plain” in “plain error.”
Id. at 547-48. “An error is plain ‘where the law at the time of
trial was settled and clearly contrary to the law at the time of
appeal.’” United States v. Hughes, 401 F.3d 540, 547 (4th Cir.
2005) (quoting Johnson v. United States, 520 U.S. 461, 468
(1997)); accord United States v. David, 83 F.3d 638, 645 (4th
Cir. 1996) (holding that an error is plain when “an objection at
trial would have been indefensible because of existing law, but
a supervening decision prior to appeal reverses that well-
settled law”). When Summers challenged his sentence in the
district court, his challenge was clearly foreclosed by our
decision in Harp. Because we recognized in Simmons that Harp is
no longer good law under Carachuri-Rosendo, however, the
district court’s sentencing error was “plain.”
Finally, we find that the district court’s error was
not harmless. For a procedural sentencing error to be harmless,
the Government must prove that the error did not have a
“substantial and injurious effect or influence on the result.”
United States v. Lynn, 592 F.3d 572, 585 (4th Cir. 2010)
(internal quotation marks omitted). Because Summers could have
received a lesser sentence if the district court accepted his
argument regarding Violation One, the Government cannot
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establish harmlessness. See Thompson, 595 F.3d at 548 (finding
that Government could not establish harmlessness because had the
district court explicitly considered defendant’s nonfrivolous
arguments for leniency, “it could conceivably have given him a
lower sentence”).
Based on the foregoing, we vacate the district court’s
judgment and remand the matter to the district court for
resentencing. * We dispense with oral argument because the facts
and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED
*
We of course do not fault the Government or the district
court for their reliance upon, and application of, unambiguous
circuit authority at the time of Summers’ sentencing.
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