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

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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

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2014 Felony Judgment

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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).

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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?