Only Mostly Dead?
The Continued Vitality of Simmons
in the Wake of North Carolina’s
Justice Reinvestment Act of 2011
by Christian Dysart, and
Jenny Leisten, Research & Writing
Attorney, FPD
United States v. Simmons,
649 F.3d 237 (4th Cir. 2011) (en banc)
• Facts:
– Simmons pled guilty to federal drug trafficking
charge
• 5 year mandatory minimum
• 10 year mandatory minimum if prior conviction for a
drug offense punishable by imprisonment for more
than one year
United States v. Simmons,
649 F.3d 237 (4th Cir. 2011) (en banc)
• Facts
– Simmons previously convicted of Class I felony
• Potential sentence of more than one year ONLY IF:
– Aggravating factors
– Prior record level of at least 5
• Neither condition met in Simmons’ case
United States v. Simmons,
649 F.3d 237 (4th Cir. 2011) (en banc)
• Issue
– In determining whether an offense subjected a defendant to
“imprisonment for a term exceeding one year,” should the
reviewing court consider what the actual defendant could have
received on the day of sentencing or the sentence of” an
imagined worst-case offender”?
• Holding:
– Look at what the actual defendant could have received on the
day of sentencing
Pre-JRA Sentencing Chart
Prior Convictions
Impacted by Simmons
Death of Simmons?
• Video
2014 Felony Judgment
Current North Carolina Felony
Punishment Chart
Which Prior Convictions Continue to
be Impacted by Simmons?
Federal System Makes the
Distinction Clear
North Carolina Does Not
AOC Forms Have Not Been
Updated to Reflect the Changes
Made by the JRA
North Carolina’s Justice Reinvestment
Act of 2011
• For more information see:
http://nccriminallaw.sog.unc.edu/the-justicereinvestment-act-an-overview/
• Relevant here, after enactment all felony
sentences now include a mandatory period of
post-release supervision (9 months for low-level
felonies)
Post-release supervision is not
“imprisonment”
Post-release supervision – “The time for which a
sentenced prisoner is released from prison
before the termination of his maximum prison
term, controlled by the rules and conditions of
this Article.” N.C. Gen. Stat. § 15A-1368(1)
(emphasis added)
“[A] prisoner to whom [post-release supervision]
applies shall be released from prison for postrelease supervision on the date equivalent to his
maximum imposed prison term . . . less nine
months in case of Class F through I felons.” N.C.
Gen. Stat. § 15A-1368.2(a) (emphasis added).
“A prisoner shall not refuse post-release
supervision.” Id. at § 15A-1368.2(b) (emphasis
added).
Post-release Supervision Not
Governed by the Courts
• § 15A-1368.6(e)
• Revocation hearings controlled by the
Commission.
– “The Commission shall adopt rules governing the
hearing.”
Consecutive sentences under N.C.
Gen. Stat. § 15A-1354(b)(1)
• Single Sentence Rule
– Where multiple sentences of imprisonment are
imposed to run consecutively, “the Department of
Public Safety must treat the defendant as though he
has been committed for a single term” such that the
defendant shall be assessed a single nine-month
period of post-release supervision (for Class F through
I felonies).
Plea Transcripts Typically Ignore
the Law
Some ADAs Are Starting
to Get it Right
Why should we care?
• Motions to Dismiss
• Sentencing Issues
• Enhancements
• Immigration Cases
• SORNA Registration
• Felony Conspiracy
• Supervised Release Variations (Grade A; B; C)
Immigration Application:
“Aggravated Felonies”
(365-day Sentence Rule)
SORNA Registration
• 42 U.S.C. 16915
(b) Reduced period for clean record
(1) Clean record
The full registration period shall be reduced as described in
paragraph (3) for a sex offender who maintains a clean
record for the period described in paragraph (2) by—
(A) not being convicted of any offense for which
imprisonment for more than 1 year may be imposed;
Making the argument
• Government Responses?
• How do various judges rule?
• Where do we stand on appellate review?
Questions?