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United States v. Romero

United States District Court, E.D. North Carolina, Western Division

June 12, 2015



TERRENCE W. BOYLE, District Judge.

This matter is before the Court on defendant Angel Anthony Romero's motion to dismiss the indictment for failure to state an offense. [DE 21]. The government has responded [DE 22] and the matter is ripe for ruling. For the following reasons, defendant's motion is GRANTED and the indictment is DISMISSED.


On December 11, 2014, Mr. Romero pled guilty in Wake County District Court to breaking and/or entering in violation of N.C. Gen. Stat. § 14-54(A) and felony larceny in violation of N.C. Gen. Stat. § 14-72(A). [DE 21-1]. Both are defined as Class H felonies under North Carolina law. [ Id. ] The district court determined that defendant had a prior record level of I, found no aggravating or mitigating factors, and ordered that the offenses be consolidated for judgment. [ Id. ] the court then imposed a sentence within the presumptive range authorized by N.C. Gen. Stat § 15A-1340.17(c), ordering that Mr. Romero "be imprisoned for a minimum term of 5 months [and] for a maximum of 15 months in the custody of" the North Carolina Division of Adult Corrections. [ Id. ] Mr. Romero was given credit for 25 days spent in confinement, and the court suspended his sentence in lieu of 18 months of supervised probation. [ Id. ]

On March 18, 2015, a grand jury sitting in the Eastern District of North Carolina returned a true bill of indictment charging Mr. Romero with knowingly possessing a firearm and ammunition "having been previously convicted of a crime punishable by a term of imprisonment exceeding one (1) year, " in violation of 18 U.S.C. §§ 922(g)(1) and 924. [DE 1]. The predicate crimes underlying the charge are the aforementioned North Carolina state convictions. On April 27, 2015, defendant filed the instant motion seeking dismissal of the indictment on the grounds that his prior North Carolina convictions were not for crimes punishable by imprisonment for a term exceeding one year as required by 18 U.S.C. § 922(g)(1). [DE 21].


I. North Carolina Structured Sentencing and the Justice Reinvestment Act of 2011

North Carolina uses a structured sentencing scheme to determine each defendant's sentence. See N.C. Gen. Stat. § 15A-1340.10 et seq., The scheme employs a grid in which the horizontal rows represent classes of felonies (classes A through I) and the vertical columns represent prior record levels based on a defendant's criminal history (levels I through VI). Id. § 15A-1340.17(c). Within each box on the grid are three ranges of minimum sentences: presumptive, mitigated, and aggravated. Id. A court may only choose a sentence within the mitigated range after making written findings in fact thereof and may only choose a sentence with the aggravated range if a jury determines that an aggravating factor is present. Id. § 15A-1340.16(a)(1), (c). After determining a defendant's minimum sentence via the grid, the court must impose the corresponding maximum sentence listed in § 15A-1340.17(d) for class F through I felonies or (e) for Class B1 through E felonies.

The Justice Reinvestment Act of 2011 (JRA or Act), which became effective on December 1, 2011, significantly changed North Carolina's structured sentencing scheme. 2011 N.C. Sess. Laws 192. On that date, all North Carolina felony maximum sentences were modified to include a mandatory nine month term of post-release supervision. See Articles 81D and 84A of the North Carolina Criminal Procedure Act, N.C. Gen. Stat. §§ 15A-1340, et seq.; 15A-1368 et seq.. The nine month period cannot be served in prison as punishment for the crime of conviction. The JRA provides that "a prisoner to whom [post-release supervision] 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...." § 15A-1368.2(a)(emphasis added). Moreover, "[a] prisoner shall not refuse post-release supervision." § 15A-1368.2(b). Despite the fact that this period must be imposed after release from prison, the "maximum sentence" is expressed on the structured sentencing chart as a single number of months which includes the nine month post-release supervisory period. The chart does not distinguish between the term of imprisonment and the supervisory period.

II. Federal Definition of a Crime Punishable by More than One Year

In United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), the Fourth Circuit "changed the way [it] determines whether prior convictions for certain lower-level North Carolina felonies are punishable by more than one year in prison." Miller v. United States, 735 F.3d 141, 145 (4th Cir. 2013). Before Simmons was decided, courts looked at "the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history." United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005) (emphasis in original). Following Simmons, courts are required "to look at how much prison time the defendant was exposed to given his own criminal history at the time he was sentenced and any aggravating factors that were actually alleged against him." Miller, 735 F.3d at 146.

The Fourth Circuit based its holding on Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), in which the Supreme Court invalidated the "hypothetical approach" to classifying a defendant's prior conviction as an aggravated felony for purposes of the Immigration and Nationality Act. Instead of looking "to what might have or could have been charged, " Carachuri-Rosendo requires courts to determine whether the defendant was " actually convicted of a crime that is itself punishable as a felony under federal law, " rather than whether he hypothetically could have received felony treatment." Id. at 582 (emphasis in original). Following the reasoning in Carachuri-Rosendo, the Fourth Circuit held that "the mere possibility that [Simmons's] conduct, coupled with facts outside the record of conviction, could have authorized' a conviction of a crime punishable by more than one year's imprisonment cannot and does not demonstrate that Simmons was actually convicted of such a crime." Simmons, 649 at 244-45 (quoting Carachuri-Rosendo, 560 U.S. at 582). Since Simmons was decided, the Fourth Circuit has reiterated that " Simmons, and Carachuri before it, teach that we may not measure a defendant's maximum punishment based on a hypothetical charge, a hypothetical criminal history, or other facts outside the record of conviction.'" United States v. Valdovinos, 760 F.3d 322, 327 (quoting Simmons, 649 F.3d at 244); see also United States v. Kerr, 37 F.3d 333, 343 (4th Cir. 2013); United States v. Bercian-Flores, ___ F.3d ___, 2015 WL 2239325 at *6-7 (4th Cir. 2015).

III. Application to Mr. Romero's Case

It is clear that Simmons precludes consideration of hypothetical charges and hypothetical criminal histories when determining a maximum sentence. See, e.g., Valdovinos, 760 F.3d at 327. It follows, therefore, that Simmons also precludes consideration of hypothetical future violations of post-release supervision when determining the maximum sentence to which a defendant was exposed. The wording of the statutory scheme and significant legal process and protections afforded a defendant in the revocation process demonstrate that state courts lack legal authority to impose what North Carolina law refers to as the "maximum" sentence at the time a defendant ...

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