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Simmons Retroactive, Court Vacates Gun Conviction

The 4th Circuit retroactively applies its Simmons decision narrowing the class of offenders and range of conduct subject to punishment under 18 U.S.C. § 922(g)(1) for possession of a firearm as a felon, and vacates a defendant’s conviction and remands for the district court to grant his post-conviction § 2255  motion.

At the time of defendant’s trial on the firearm charge, he previously had been convicted in North Carolina for felony possession of cocaine, for which he was sentenced to six to eight months in prison; and threatening a court officer, for which he also was sentenced to six to eight months in prison. Under state sentencing law, the maximum sentence defendant could have received for either offense – based on his prior record level – was eight months. At his federal trial, under then valid precedent, defendant’s convictions were considered to be “punishable by imprisonment for a term exceeding one year.”

Defendant argues that pursuant to our decision in U.S. v. Simmons, 649 F.3d 237 (4th Cir. 2011), his conviction under 18 U.S.C. § 922(g)(1) must be vacated. In Simmons, this court held that a defendant’s prior conviction for which he could not have received more than a year in prison under North Carolina’s mandatory Structured Sentencing Act, N.C. Gen. Stat. § 15A-1340.17, was not “punishable” by more than one year in prison and is not a felony offense for purposes of federal law. After Simmons, an individual is  not prohibited from possessing a firearm unless he could have received a sentence of more than one year for at least one of his prior convictions. The parties and amicus agree Simmons announced a new rule affecting § 922(g)(1), but the amicus argues the rule is not retroactive.

Simmons changed the way this court determines whether prior convictions for certain lower-level North Carolina felonies are punishable by more than one year in prison. Comparing the Simmons decision to other decisions that have announced a substantive rule makes clear that Simmons functioned as an announcement of a new substantive rule. Simmons narrowed the class of offenders and range of conduct that can be subject to punishment. The additional application and analysis distinguishes Simmons from Carachuri-Rosendo v. Holder, 130 S.Ct. 2577 (2010). Even though U.S. v. Powell, 692 F.3d 544 (2012), determined that Carachuri is a procedural rule that is not retroactive, this does not mean that Simmons, in applying Carachuri, did not announce a substantive rule that is retroactive.

Because Simmons announced a new substantive rule that is retroactive on collateral review, we vacate defendant’s conviction and remand with instructions to grant his petition under 28 U.S.C. § 2255.

Vacated and remanded.


King, J.: I write separately to reiterate my view that the Supreme Court decision in Carachuri is retroactively applicable to cases on collateral review. I also acknowledge and appreciate that the panel majority’s contrary ruling in Powell is the law of this circuit. Nevertheless, Powell did not answer the distinct question now before us, that is, whether this court’s decision in Simmons has retroactive applicability. I agree that it does.

Miller v. U.S. (Floyd) No. 13-6254, Aug. 21, 2013; USDC at Charlotte, N.C. (Conrad) Ann L. Hester for appellant; Amy E. Ray, AUSA, for appellee. VLW013-2-173, 16 pp.

VLW 013-2-173

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