United States v. Ernest Cook, III , 457 F. App'x 285 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4717
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERNEST ELI COOK, III,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:10-cr-00433-CCE-1)
Submitted: November 22, 2011 Decided: December 7, 2011
Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Louis C. Allen, III, Federal Public Defender, William S.
Trivette, Assistant Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anand P. Ramaswamy, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ernest Eli Cook, III, appeals from his conviction and
sentence of 204 months’ imprisonment for possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(2006). On appeal, Cook challenges the district court’s denial
of his motion to suppress, claims that his conviction exceeds
Congress’s authority under the Commerce Clause, and asserts that
he was wrongly sentenced as an armed career criminal.
Also pending before us is a joint motion to vacate
Cook’s sentence and remand for further proceedings in light of
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc). The parties contend that Cook’s three North Carolina
convictions for breaking and entering into a residence, in
violation of N.C. Gen. Stat. § 14-54(a) (2009), are not properly
considered felonies under 18 U.S.C. § 924(e)(1) (2006), and,
therefore, that Cook should not have been subject to
§ 924(e)(1)’s fifteen-year mandatory minimum or classification
as an armed career criminal. For the reasons set forth below,
we affirm the district court’s denial of Cook’s motion to
suppress, affirm his conviction, grant the joint motion to
vacate his sentence, and remand for resentencing.
First, we find that the district court did not err in
denying Cook’s motion to suppress because the search of his
outgoing mail by jail officials did not violate the Fourth
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Amendment. We have held that a prison official may
constitutionally conduct a warrantless search of an inmate’s
outgoing mail so long as the search is “reasonably related to
legitimate penological interests.” Altizer v. Deeds, 191 F.3d
540, 547 (4th Cir. 1999) (internal quotation marks omitted). As
the U.S. Supreme Court has often observed, the investigation and
prevention of ongoing illegal inmate activity furthers the
legitimate penological objectives of prison security and inmate
rehabilitation. See Thornburgh v. Abbott, 490 U.S. 401, 411-12
(1989); Procunier v. Martinez, 416 U.S. 396, 412-13 (1974); see
also United States v. Workman, 80 F.3d 688, 698-99 (2d Cir.
1996).
Here, jail officials’ search of Cook’s mail was part
of an effort to prevent him from further secreting or
trafficking in stolen goods. Because their actions were based
on a reasonable belief that the correspondence in question
contained information regarding such criminal activity, the
search of Cook’s mail was reasonably related to a legitimate
penological interest and did not offend his Fourth Amendment
rights.
Additionally, we find meritless Cook’s claim that his
conviction for violating 18 U.S.C. § 922(g)(1) exceeded
Congress’s authority under the Commerce Clause. As Cook
concedes, we have previously held that 18 U.S.C. § 922(g)(1) is
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a legitimate exercise of Congress’s authority to regulate
interstate commerce because the statute “expressly requires
proof of a nexus with interstate commerce.” United States v.
Gallimore, 247 F.3d 134, 138 (4th Cir. 2001).
Finally, regarding the parties’ joint motion to vacate
Cook’s sentence, we hold that, in light of our recent decision
in Simmons and the record before us, Cook was improperly
sentenced under 18 U.S.C. § 924(e)(1). 1 In Simmons, we overruled
United States v. Harp, 406 F.3d 242 (4th Cir. 2005), and
determined that whether a particular offense was a “felony” must
focus on the maximum sentence for which a particular defendant
was eligible, in light of his criminal history, rather than the
maximum sentence that could be imposed on a defendant with the
worst possible criminal record. Simmons, 649 F.3d at 241-47.
Here, Cook’s sentencing under 18 U.S.C. § 924(e)(1)
was predicated on his three previous North Carolina convictions
for felony breaking and entering into a residence and one North
Carolina conviction for felony robbery with a dangerous weapon.
The North Carolina judgments included in the record before us
indicate that at least two of Cook’s three convictions for
breaking and entering were Class H felonies, and that he had a
1
We of course do not fault the district court for its
reliance upon, and application of, unambiguous circuit authority
at the time of Cook’s conviction and sentencing.
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Prior Record Level (“PRL”) of I at the time of each conviction. 2
Under North Carolina’s structured sentencing law, no person with
a conviction for a Class H offense and a PRL of I could receive
more than ten months’ imprisonment. See N.C. Gen. Stat. § 15A-
1340.17(c)-(d) (2007) (applicable to offenses committed on or
after December 1, 1995, and on or before November 30, 2009).
Therefore, at least two of Cook’s breaking and entering
convictions do not qualify as a “felony” under § 924(e)(1). See
18 U.S.C. § 924(e)(2)(B). Consequently, we find that Cook lacks
the three violent or drug related felony convictions necessary
to trigger sentencing under 18 U.S.C. § 924(e)(1).
Accordingly, we grant the parties’ joint motion to
vacate Cook’s sentence and remand for further proceedings
consistent with Simmons. By this disposition, however, we
express no opinion as to whether Cook’s third North Carolina
conviction for breaking and entering properly qualifies as a
felony for the purposes of determining Cook’s sentence, leaving
that determination in the first instance to the district court.
Therefore, we affirm the district court’s denial of
Cook’s motion to suppress, affirm his conviction, vacate his
2
Cook claims that his third conviction for breaking and
entering was also a Class H felony and that he was sentenced
based on a PRL of I, but we cannot verify this assertion as a
copy of the relevant judgment is not included in the record on
appeal.
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sentence, and remand to the district court for resentencing
consistent with Simmons. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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