US v. Derrick Summers
Filing
920100120
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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.
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Martin K. Reidinger, District Judge. (3:03-cr-00040-MR-2)
Submitted:
January 14, 2010
Decided:
January 20, 2010
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Beth Blackwood, Research and Writing Attorney, 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Derrick revocation of his Summers appeals release the term district imposed court's by the
supervised
district court upon his conviction, on a guilty plea, to use and carry of a firearm in furtherance of a car-jacking, in violation of 18 U.S.C. § 924(c) (2006). 1 The revocation occurred following
Summers' arrest, less than six weeks after the commencement of his term of supervised release, for possession of marijuana with intent to distribute, possession of a firearm by a convicted felon, possession of a stolen firearm, and unlawfully carrying a concealed weapon. Following a hearing, the district court found
five violations of the terms of Summers' supervised release, and found that the first violation, Summers' possession with intent to distribute marijuana to ("Violation U.S. One"), was a Grade A
violation
pursuant
Sentencing
Guidelines
Manual
("USSG"), § 7B1.1(a)(1), 2 contrary to Summers' claim that it was a Grade B violation. The district court then imposed a 30-month
The district court sentenced Summers to imprisonment and three years' supervised release.
2
1
seven
years'
In the supervised release revocation context, a Grade A violation results from "conduct constituting a federal, state, or local offense punishable by a term of imprisonment exceeding one year that . . . is a controlled substance offense." USSG § 7B1.1(a)(1).
2
term of imprisonment, followed by a 30-month term of supervised release. On appeal, Summers again claims that Violation One was a Grade B violation because, under North Carolina's unique
sentencing scheme, which determines statutory maximum punishment based on a defendant's criminal history, a person with Summers' criminal history could not have been sentenced to more than 10 months' imprisonment for this offense. foreclosed by circuit precedent. We find this claim to be
The district court correctly
determined that Summers' possession with intent to distribute marijuana is a Grade A violation because the maximum aggravated sentence that could be imposed for this is crime 15 under months. North See
Carolina's
structured
sentencing
system
United States v. Harp, 406 F.3d 242, 245-46 (4th Cir. 2005) (declining to apply an "individualized analysis" and holding
that the court properly should consider "the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history") (citing United States v. Jones, 195 F.3d 205 (4th Cir. 1999)). Nor do we find merit
to Summers' contention that the United States Supreme Court's decision in United States v. Rodriquez, 553 U.S. 377 (2008), implicitly overrules the reasoning in Harp such that it is no longer controlling. See, e.g., United States v. Hill, 539 F.3d
1213, 1221 (10th Cir. 2008) (holding that "Section 922(g)(1), 3
like the statute [at issue] in Rodriquez, demands that courts focus on the maximum statutory penalty for the offense, not the individual defendant"); cf. United States v. Pruitt, 545 F.3d 416, 422 (6th Cir. 2008). Finally, we decline Summers' invitation to revisit our holding in United States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006), as to the standard of review for supervised release
revocation sentences.
See United States v. Chong, 285 F.3d 343, Accordingly, we affirm the judgment of
346-47 (4th Cir. 2002). the district court. facts and legal before
We dispense with oral argument because the are and adequately argument presented not in aid the the
contentions the court
materials
would
decisional process. AFFIRMED
4
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