UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4238
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SURRELL MONTIA DUFF,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:09-cr-00082-MR-1)
Submitted: September 21, 2011 Decided: September 30, 2011
Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.
Reversed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Claire J. Rauscher, Executive Director, Matthew R. Segal,
Assistant Federal Defender, Asheville, North Carolina; Cecilia
Oseguera, Assistant Federal Defender, Charlotte, North Carolina,
for Appellant. Anne M. Tompkins, 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Unpublished opinions are not binding precedent in this circuit.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:
Surrell Montia Duff pled guilty to three counts of
distributing cocaine base (crack), 21 U.S.C. § 841(a) (2006),
and one count of unlawful possession of a firearm by a convicted
felon, 18 U.S.C. § 922(g)(1) (2006). Before his guilty plea,
the government filed a notice under 21 U.S.C. § 851 (2006), of
its intention to seek enhanced sentences based on Duff’s prior
felony drug conviction in January 2005. Duff was sentenced as a
career offender, U.S. Sentencing Guidelines Manual § 4B1.1
(2009), to a term of 262 months for the drug offenses and 120
months for the § 922(g) offense.
On appeal, Duff contends that he lacked the requisite
predicate felony convictions for either the § 922(g) offense or
the sentencing enhancements he received. Duff has also filed a
consent motion to reverse his § 922(g) conviction and his
sentence for the drug offenses, and remand his case, pursuant to
United States v. Simmons, ___ F.3d ___, 2011 WL 3607266, at *6
(4th Cir. Aug. 17, 2011) (en banc) (holding that the evaluation
of whether a prior conviction was a felony must focus on the
maximum sentence for which a particular defendant was eligible,
in light of his own criminal history, rather than the maximum
sentence that could be imposed on a defendant with the worst
possible criminal record). For the reasons explained below, we
grant the motion and remand for further proceedings.
2
A felony, for purposes of both § 922 and § 841, is
defined as a crime punishable by imprisonment for more than a
year. See 18 U.S.C. § 922(g)(1); 21 U.S.C. § 802(44). When
Duff was convicted and sentenced, the law of this circuit
required the district court to look to the maximum sentence any
defendant could receive for a specific offense to determine
whether it was a felony. See United States v. Harp, 406 F.3d
242 (4th Cir. 2005). With the decision in Simmons, we have
overruled Harp. Because Duff did not challenge his § 922(g)
conviction or his sentence for the drug offenses on this ground,
in light of Simmons, our review is for plain error. United
States v. Johnson, 520 U.S. 461, 467-68 (1997) (plain error
review is appropriate where asserted error results from
intervening change of law). Under the plain error test, the
defendant must identify an error which is clear or obvious, and
affects his substantial rights. United States v. Olano, 507
U.S. 725, 732 (1993). The appeals court may then exercise its
discretion to correct the error if it is one that “seriously
affects the fairness, integrity, or public reputation of
judicial processes.” Id. (internal citation and quotation marks
omitted).
After review of the materials submitted on appeal, we
are satisfied that Duff’s § 922(g) conviction is unsupported by
a predicate prior felony conviction. The error now identifiable
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is plain and affects Duff’s substantial rights; we therefore
exercise our discretion to correct it. Similarly, the enhanced
mandatory minimums applied to Duff for his drug offenses under
21 U.S.C. § 851, and his career offender status, both depended
on proof that Duff had one or more prior drug convictions
punishable by more than a year’s imprisonment. For the reasons
given above, neither the § 851 enhancement nor career offender
status applies in Duff’s case.
Accordingly, we grant Duff’s motion, reverse his
conviction on Count Four, the § 922(g) count, vacate the
sentences on the remaining counts, and remand the case for
resentencing consistent with Simmons.* 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.
REVERSED IN PART,
VACATED IN PART,
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 Duff’s sentencing.
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