United States v. Summers

Vacated by Supreme Court, October 4, 2010
UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 Summers appeals the district court’s
revocation of his supervised release term imposed by the
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 (“Violation One”), was a Grade A
violation pursuant to U.S. 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
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The district court sentenced Summers to seven years’
imprisonment and three years’ supervised release.
2
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).
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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. We find this claim to be
foreclosed by circuit precedent. 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 crime under North
Carolina’s structured sentencing system is 15 months. See
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,
346-47 (4th Cir. 2002). Accordingly, we affirm the judgment of
the district court. 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
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