UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5150
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
REGINALD TYRONE COZART,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:11-cr-00087-BO-1)
Argued: September 20, 2012 Decided: October 31, 2012
Before NIEMEYER and KEENAN, Circuit Judges, and Michael F.
URBANSKI, United States District Judge for the Western District
of Virginia, sitting by designation.
Vacated and remanded with instructions by unpublished opinion.
Judge Keenan wrote the opinion, in which Judge Niemeyer and
Judge Urbanski joined.
ARGUED: Jennifer P. May-Parker, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellant. Renorda
Eulissa Pryor, HERRING AND ASSOCIATES, Raleigh, North Carolina,
for Appellee. ON BRIEF: Thomas G. Walker, United States
Attorney, Evan Rikhye, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, the government challenges the district
court’s order dismissing an indictment against Reginald Cozart
after finding him guilty of the offense charged, namely, the
unlawful possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924. The district court
held that because Cozart was sentenced to a term of imprisonment
of less than one year on the predicate state conviction
underlying the federal firearm charge, his conviction on the
federal firearm charge was invalid under this Court’s decision
in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc). Upon our review, we conclude that the district court
misapplied our decision in Simmons. Accordingly, we vacate the
district court’s order dismissing the indictment, reinstate
Cozart’s conviction, and remand the case to the district court
for further proceedings.
I.
In July 2011, Cozart entered a guilty plea to a charge of
possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924. Those statutes, in relevant part,
prohibit anyone who has been convicted by any court of a “crime
punishable by imprisonment for a term exceeding one year” from
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possessing a firearm or ammunition. 18 U.S.C. § 922(g)(1). 1 The
predicate conviction identified by the government to support the
federal firearm charge was Cozart’s earlier conviction under
North Carolina law as an accessory after the fact to discharging
a firearm into an occupied property (the state conviction).
The district court held a sentencing hearing in October
2011, in which the court determined that Cozart should receive a
sentence of 15 months’ imprisonment followed by a three-year
period of supervised release. However, the district court did
not enter a final order imposing sentence at that time.
Two weeks after the sentencing hearing, the district court
conducted an additional hearing to determine whether Cozart’s
conviction could stand in light of this Court’s en banc decision
in Simmons, decided six weeks after Cozart entered his guilty
plea. The district court observed that Cozart had received a
sentence of 10 to 12 months’ imprisonment for the state
conviction, even though the statutory “presumptive range” of
imprisonment for that offense for an individual with Cozart’s
“prior record level” was 10 to 13 months’ imprisonment.
Interpreting our decision in Simmons, the district court stated
that “only when a defendant has been punished by a term of
imprisonment exceeding one year should his prior conviction be
1
18 U.S.C. § 924 provides, among other things, a maximum
term of 10 years’ imprisonment for a violation of § 922(g).
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considered by a federal court in determining predicate offense
conduct.” (Emphasis in original.)
Applying this construction of Simmons, the district court
held 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).”
(Emphasis in original.) The district court accordingly vacated
Cozart’s conviction and dismissed the indictment. The
government timely filed a notice of appeal.
II.
In considering the issue of law before us, we apply an
established standard of review. We evaluate de novo the
district court’s order vacating Cozart’s conviction and
dismissing the indictment. See United States v. Pettiford, 612
F.3d 270, 275 (4th Cir. 2010) (reviewing de novo legal issues
underlying district court’s vacatur of conviction); United
States v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009) (reviewing
district court’s dismissal of indictment de novo when dismissal
was based on a conclusion of law).
In Simmons, we analyzed a federal statute requiring
application of a sentencing enhancement when a defendant had
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been convicted of a prior drug-related offense “punishable by
imprisonment for more than one year.” 649 F.3d at 239 (citing
21 U.S.C. §§ 802(44), 841(b)(1)(B)(vii)). In construing this
statutory language, we held that federal courts, in determining
whether a prior conviction was “punishable” by a term of
imprisonment greater than one year, should not look to the
maximum sentence that the state court could have imposed for a
hypothetical defendant who was guilty of an aggravated offense
or had a substantial prior criminal record. Id. at 243-47. We
directed that, instead, federal courts must examine the maximum
sentence that the state court could have imposed on a person
with that particular defendant’s actual criminal history and
level of aggravation. Id.; see also United States v. Powell,
691 F.3d 554, 559 (4th Cir. 2012) (summarizing Simmons holding).
The statutory language at issue in Simmons is substantively
identical to the language of 18 U.S.C. § 922(g)(1) at issue in
this case. Thus, although Simmons was decided in the context of
a sentencing enhancement statute, rather than the validity of
the federal conviction itself, our holding in Simmons is equally
applicable to the statute at issue here, which requires as an
element of the firearm offense a predicate conviction for a
crime “punishable” by more than one year in prison. See 18
U.S.C. § 922(g)(1).
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We hold that the district court erred in concluding that
Cozart’s federal conviction was invalid under Simmons. Our
decision in Simmons addressed a situation in which a defendant
had a predicate conviction for a crime that was punishable by a
maximum term of imprisonment greater than one year, but for
which that particular defendant could not have been sentenced to
imprisonment exceeding one year for that crime given the
defendant’s prior record level and the absence of any
aggravating factors found by the sentencing court. 2 We held that
a conviction for such a defendant was not “punishable by
imprisonment for a term exceeding one year,” within the meaning
of 21 U.S.C. §§ 802(44), 841(b)(1)(B)(vii). Simmons, 649 F.3d
at 243-45.
In United States v. Edmonds, 679 F.3d 169, 176-77 (4th Cir.
2012), issued after the district court vacated Cozart’s
conviction, we emphasized that Simmons does not direct a
district court to restrict its consideration to the sentence
that a defendant actually received for a predicate conviction in
determining the extent of his potential punishment for that
2
As described in Simmons, an individual defendant’s
sentencing range under the North Carolina Structured Sentencing
Act is determined based on a combination of three factors: 1)
classification of the offense; 2) the defendant’s prior record
level; and 3) the presence or absence of aggravating or
mitigating factors. See N.C. Gen. Stat. § 15A-1340.17; Simmons,
649 F.3d at 240.
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offense. The defendant in Edmonds had received an enhanced
sentence under 21 U.S.C. § 841(b)(1)(A) and U.S.S.G § 4B1.1(a),
based on two prior drug convictions that the district court
found were each punishable by a term of imprisonment exceeding
one year. 679 F.3d at 176. For one of these two prior
convictions, Edmonds had been subject to a maximum sentencing
range of up to 14 months’ imprisonment, although he actually was
sentenced to serve a term of 9 to 11 months’ imprisonment.
We rejected Edmonds’ argument that this prior state
conviction could not be used to enhance his federal sentence on
the ground that he did not actually receive a sentence exceeding
one year of imprisonment. We explained that under our holding
in Simmons, “the qualification of a prior conviction does not
depend on the sentence [a defendant] actually received but on
the maximum sentence that he could have received for his
conviction.” Edmonds, 679 F.3d at 176. Thus, we concluded that
because Edmonds could have received a term of 14 months’
imprisonment for that offense, the offense qualified as a
predicate conviction for sentencing enhancement purposes. Id.
at 176-77.
The reasoning applied by the district court in the present
case was contrary to our holding in Simmons, as further applied
by our holding in Edmonds. Cozart’s state conviction and prior
record level rendered him eligible to receive for that
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conviction a term of imprisonment of up to 13 months. Thus,
Cozart’s actual sentence of 10 to 12 months’ imprisonment was
not determinative of the issue whether he had been convicted of
a crime “punishable by imprisonment for a term exceeding one
year.” See 18 U.S.C. § 922(g)(1). Cozart had been convicted of
a crime that was “punishable by imprisonment for a term
exceeding one year,” because he could have been sentenced for
that prior conviction to a term of up to 13 months’
imprisonment. Accordingly, Cozart’s prior record qualified him
for conviction under 18 U.S.C. § 922(g)(1).
For these reasons, we vacate the district court’s judgment,
and remand the case to the district court for reinstatement of
the indictment and conviction, and for entry of final judgment
imposing sentence on Cozart for his violation of 18 U.S.C.
§§ 922(g)(1) and 924.
VACATED AND REMANDED WITH INSTRUCTIONS
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