United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
JAMES A. BEATY, Jr., District Judge.
This matter is before the Court on Defendant Joey Dwayne Justus's ("Defendant") Motion to Dismiss [Doc. #13], in which Defendant seeks dismissal of Counts One and Three of the instant Indictment. Counts One and Three charge Defendant with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Defendant argues that his prior North Carolina conviction does not qualify as a felony under § 922(g)(1) because he did not face a term of actual imprisonment in excess of one year. A hearing on Defendant's Motion was held on May 6, 2015, at the end of which this Court determined it would deny Defendant's Motion. This Memorandum Opinion and Order is entered consistent with this Court's findings and conclusions as stated at the May 6, 2015 hearing.
I. FACTUAL AND PROCEDURAL BACKGROUND
The relevant background information is as follows. On February 24, 2015, a Grand Jury returned a four-count Indictment against Defendant, charging him in Counts One and Three with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and in Counts Two and Four of possession of a stolen firearm in violation of 18 U.S.C. § 922(j). As is relevant here, § 922(g)(1) is triggered only when a person "has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year." 18 U.S.C. § 922(g)(1). Defendant has a prior North Carolina state conviction for attempted breaking or entering that appears to qualify Defendant as a felon within the meaning of § 922(g)(1) for purposes of Counts One and Three.
Defendant was convicted in the Davidson County, North Carolina Superior Court on January 30, 2014, for felony attempted breaking or entering for an offense that occurred on July 22, 2013. The judgment from the Superior Court indicates that, pursuant to North Carolina law, Defendant's conviction was a Class I felony and that Defendant had a Prior Record Level of III. Additionally, the judgment indicates that mitigating factors justified a mitigated sentence in Defendant's case. The judgment imposed a sentence of 4 to 14 months of imprisonment.
Based on Defendant's interpretation of applicable North Carolina sentencing law, Defendant filed a Motion to Dismiss [Doc. #13] on April 24, 2015. The Motion sought dismissal of Counts One and Three of the Indictment for failure to state an offense, because Defendant contends that his prior North Carolina conviction was not punishable for a term in excess of one year. On April 29, 2015, the Government filed a Response [Doc. #14] in opposition to Defendant's Motion. The Parties presented additional argument at the May 6, 2015, hearing on the Motion.
II. LEGAL STANDARD
Rule 12(b)(3) of the Federal Rules of Criminal Procedure permits a defendant to file a pretrial motion to dismiss an indictment that is defective by virtue of failing to state an offense. Fed. R. Crim. Proc. 12(b)(3)(b)(v). Such a motion to dismiss "tests whether the indictment sufficiently charges the offense set forth against the defendant." United States v. Brandon, 150 F.Supp.2d 883, 884 (E.D. Va. 2001) (citing United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962)). An indictment must generally state the necessary elements of the charged offense, accompanied by a statement of facts supporting the charge and informing the defendant of the specific conduct alleged to constitute the offense. United States v. Perry, 757 F.3d 166, 171 (4th Cir. 2014); see United States v. Brandon, 150 F.Supp.2d 883, 884 (E.D. Va. 2001)(citing Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907-08, 41 L.Ed.2d 590 (1974)).
Defendant argues that the Indictment fails to state an offense because his underlying North Carolina conviction was not punishable for a term of imprisonment in excess of one year. Defendant bases this argument on a term of post-release supervision that is included in the sentences of certain North Carolina state felonies.
As is relevant here, North Carolina General Statute § 15A-1340.13 sets out the procedure a North Carolina state court follows when sentencing a defendant. Initially, the court must determine the Prior Record Level of the defendant and the Class of Offense at issue. N.C. Gen. Stat. § 15A-1340.13(b). Based on these two determinations, in conjunction with any aggravating or mitigating factors, the court then determines the applicable minimum and maximum sentence, as specified in North Carolina General Statute § 15A-1340.17, unless other applicable statutes require a different sentence. Id. § 15A-1340.13(b)-(e). As to post-release supervision for such sentences, the Justice Reinvestment Act of 2011 ("JRA") as codified provides that "a prisoner to whom this Article applies shall be released from prison for post-release supervision on the date equivalent to his maximum imposed prison term... less nine months in the case of Class F through I felons[.]" Id. § 15A-1368.2(a). A defendant cannot choose to serve this portion of his sentence in prison rather than serve the portion as post-release supervision. Id. § 15A-1368.2(b). "When a supervisee completes the period of post-release supervision, the sentence or sentences from which the supervisee was placed on post-release supervision are terminated." Id. § 15A-1368.2(f).
Based on reading § 15A-1340.17 in conjunction with § 15A-1368.2, Defendant asserts that Defendant's conviction was not punishable by a term of imprisonment exceeding one year for purposes of § 922(g)(1). Defendant argues that because his prior North Carolina felony was a Class I felony, his sentence of imprisonment contained a 9-month term of post-release supervision. Thus, according to Defendant, this Court must effectively consider the maximum term of imprisonment Defendant was sentenced to for the prior convictions, then subtract 9 months for the mandatory post-release supervision term, in order to determine whether Defendant was convicted of an offense punishable by a term in excess of one year.
In the present matter, Defendant received a 4 to 14 month sentence for his prior conviction of attempted breaking or entering. Defendant frames the sentence for this previous conviction as consisting of two components: first, a sentence of imprisonment, and second, a mandatory term of post release supervision. By Defendant's reasoning, Defendant was sentenced to a maximum of 5 months of imprisonment, followed by 9 months of post-release supervision. Defendant asserts that because the sentence for his North Carolina conviction effectively contained a period of 9 months during which he would be released on supervision, the term of actual imprisonment was necessarily less than one year. Defendant contends that he has not been convicted of an offense "punishable by imprisonment for a term exceeding one year" for purposes of charging Defendant under § 922(g)(1), and therefore, the Indictment fails to state an offense as to Counts One and Three.
However, this Court is persuaded that the post-release supervision is more accurately considered part of the term of imprisonment the State of North Carolina imposes for certain felony convictions. The judgment for the underlying conviction only states a range of term of imprisonment, with no reference to any term of post-release supervision. In this instance, Defendant's judgment imposed a sentence of 4 to 14 months. As Defendant conceded at the hearing, the judgment nowhere mentions the 9-month term of post-release supervision. Instead, the judgment contains a simple and clear sentence of imprisonment, which was in excess of one year of imprisonment. To the extent this Court's review of a state court's judgment is limited to review of the charging and sentencing documents, the sentencing document in this matter reveals a sentence of imprisonment in excess of one year, and does not contain an indication that the sentencing ...