United States v. Surrell Duff

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4238

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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Reversed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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

3
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.