US v. Derrick Summers
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:03-cr-00040-MR-2 Copies to all parties and the district court/agency. [998676010].. [09-4482]
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Document: 41
Date Filed: 09/13/2011
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4482
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DERRICK LAMONT SUMMERS,
Defendant – Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 09-10329)
Submitted:
September 8, 2011
Decided:
September 13, 2011
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, Counsel
of Record, Beth Blackwood, Research and Writing Attorney,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte,
North Carolina, for Appellant.
Edward R. Ryan, Acting United
States Attorney, Mark A. Jones, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In
possessing
2004,
a
Derrick
firearm
Lamont
during
and
Summers
in
pled
relation
guilty
to
to
crime
of
a
violence, in violation of 18 U.S.C. § 924(c)(1) (2006), and was
sentenced to seven years in prison with three years’ supervised
release.
Summers’ supervised release was revoked shortly after
he was released from prison, and the district court sentenced
him to thirty months in prison, to be followed by thirty months
of supervised release.
Summers timely appealed, asserting that under United
States v. Rodriquez, 553 U.S. 377, 389 (2008) (cautioning that
when
a
judgment
colloquy
of
“do[es]
conviction,
not
show
that
charging
the
document
defendant
or
plea
faced
the
possibility of a recidivist enhancement,” the government might
be
precluded
qualifying
from
offense
establishing
triggering
that
the
application
conviction
of
the
is
a
sentencing
enhancement), the district court erred when it classified one of
his supervised release violations as a Grade A violation and,
thus, erred in calculating his sentencing range.
According to
Summers, since the maximum prison term he faced for the North
Carolina offense underlying the violation was ten months, the
offense was not “punishable by a term of imprisonment exceeding
one
year.”
See
U.S.
Sentencing
§ 7B1.1(a)(A)(1)(ii) (2008).
2
Guidelines
Manual
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We affirmed the district court’s judgment, rejecting
Summers’ argument as contrary to United States v. Harp, 406 F.3d
242, 246 (4th Cir. 2005) (holding that in order to “determine
whether a conviction is for a crime punishable by a prison term
exceeding one year, . . . [the court] consider[s] the maximum
aggravated sentence that could be imposed for that crime upon a
defendant
with
the
worst
possible
criminal
history”),
and
rejecting Summers’ argument that Rodriquez implicitly overruled
See United States v. Summers, 361 F. App’x 539, 541 (4th
Harp.
Cir.
2010)
(No.
09-4482)
(unpublished).
Summers
filed
a
petition for writ of certiorari with the Supreme Court, and the
Supreme
Court
criminal
vacated
judgment
this
and
court’s
remanded
the
judgment
case
to
affirming
this
the
court
for
further consideration in light of Carachuri-Rosendo v. Holder,
130 S. Ct. 2577 (2010).
We vacate Summers’ sentence and remand
the matter to the district court for resentencing.
This
court
will
affirm
a
sentence
imposed
after
revocation of supervised release if it is within the applicable
statutory maximum and is not plainly unreasonable.
See United
States v. Crudup, 461 F.3d 433, 437, 439–40 (4th Cir. 2006).
first
assess
the
sentence
for
reasonableness,
We
“follow[ing]
generally the procedural and substantive considerations that we
employ in our review of original sentences . . . with some
necessary modifications to take into account the unique nature
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of supervised release revocation sentences.”
Id. at 438–39; see
United States v. Finley, 531 F.3d 288, 294 (4th Cir. 2008) (“In
applying
the
determine,
States,
‘plainly
using
552
U.S.
‘unreasonable.’”).
the
unreasonable’
instructions
38,
51
standard,
given
(2007)],
in
we
[v.
Gall
whether
a
first
United
sentence
is
Only if a sentence is found procedurally or
substantively unreasonable will we “decide whether the sentence
is plainly unreasonable.”
Crudup, 461 F.3d at 439; see Finley,
531 F.3d at 294.
A sentence is “plainly unreasonable” if it
“run[s]
clearly
afoul
of
settled
law.”
United
States
v.
Thompson, 595 F.3d 544, 548 (4th Cir. 2010).
We conclude that the district court procedurally erred
when it sentenced Summers.
We recently held in United States v.
Simmons, ___ F.3d ___, 2011 WL 3607266, *3 (4th Cir. Aug. 17,
2011), that a North Carolina offense may not be classified as a
felony based upon the maximum aggravated sentence that could be
imposed upon a repeat offender if the individual defendant was
not eligible for such a sentence.
Thus, if Summers could not
have received a sentence greater than ten months for the North
Carolina crime underlying the challenged violation, the district
court procedurally erred when it calculated Summers’ sentencing
range and his sentence is, thus, procedurally unreasonable.
Because
Summers
objected
to
his
sentencing
range
calculation in the district court, we must proceed to determine
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whether his sentence is “plainly” unreasonable.
595
F.3d
at
546.
The
analysis
of
See Thompson,
“plainly”
in
“plainly
unreasonable” is the same as that of “plain” in “plain error.”
Id. at 547-48.
“An error is plain ‘where the law at the time of
trial was settled and clearly contrary to the law at the time of
appeal.’”
2005)
United States v. Hughes, 401 F.3d 540, 547 (4th Cir.
(quoting
Johnson
v.
United
States,
520
U.S.
461,
468
(1997)); accord United States v. David, 83 F.3d 638, 645 (4th
Cir. 1996) (holding that an error is plain when “an objection at
trial would have been indefensible because of existing law, but
a
supervening
settled
decision
law”).
district
When
court,
his
prior
Summers
challenge
to
appeal
reverses
challenged
was
his
clearly
that
well-
sentence
in
the
foreclosed
by
our
decision in Harp.
Because we recognized in Simmons that Harp is
no
law
longer
good
under
Carachuri-Rosendo,
however,
the
district court’s sentencing error was “plain.”
Finally, we find that the district court’s error was
not harmless.
the
Government
For a procedural sentencing error to be harmless,
must
prove
that
the
error
did
not
have
a
“substantial and injurious effect or influence on the result.”
United
States
v.
Lynn,
592
F.3d
572,
(internal quotation marks omitted).
585
(4th
Cir.
2010)
Because Summers could have
received a lesser sentence if the district court accepted his
argument
regarding
Violation
One,
5
the
Government
cannot
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establish harmlessness.
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See Thompson, 595 F.3d at 548 (finding
that Government could not establish harmlessness because had the
district
court
explicitly
considered
defendant’s
nonfrivolous
arguments for leniency, “it could conceivably have given him a
lower sentence”).
Based on the foregoing, we vacate the district court’s
judgment
and
remand
resentencing. *
and
legal
materials
the
matter
to
the
district
court
for
We dispense with oral argument because the facts
contentions
before
the
are
court
adequately
and
argument
presented
in
the
would
aid
the
not
decisional process.
VACATED AND REMANDED
*
We of course do not fault the Government or the district
court for their reliance upon, and application of, unambiguous
circuit authority at the time of Summers’ sentencing.
6
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