Only Mostly Dead? The Continued Vitality of Simmons in the Wake of North Carolina s Justice Reinvestment Act of 2011

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1 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

2 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

3 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

4 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

5 Pre-JRA Sentencing Chart

6 Prior Convictions Impacted by Simmons

7 Video Death of Simmons?

8 2014 Felony Judgment

9 Current North Carolina Felony Punishment Chart

10 Which Prior Convictions Continue to be Impacted by Simmons?

11 Federal System Makes the Distinction Clear

12 North Carolina Does Not

13 AOC Forms Have Not Been Updated to Reflect the Changes Made by the JRA

14 North Carolina s Justice Reinvestment Act of 2011 For more information see: Relevant here, after enactment all felony sentences now include a mandatory period of post-release supervision (9 months for low-level felonies)

15 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)

16 [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 (a) (emphasis added).

17 A prisoner shall not refuse post-release supervision. Id. at 15A (b) (emphasis added).

18 Post-release Supervision Not Governed by the Courts 15A (e) Revocation hearings controlled by the Commission. The Commission shall adopt rules governing the hearing.

19 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).

20 Plea Transcripts Typically Ignore the Law

21 Some ADAs Are Starting to Get it Right

22 Why should we care? Motions to Dismiss Sentencing Issues Enhancements Immigration Cases SORNA Registration Felony Conspiracy Supervised Release Variations (Grade A; B; C)

23 Immigration Application: Aggravated Felonies (365-day Sentence Rule)

24 SORNA Registration 42 U.S.C (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;

25 Making the argument Government Responses? How do various judges rule? Where do we stand on appellate review?

26 Questions?

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