US v. Derrick Summers, No. 09-4482 (4th Cir. 2010)
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The court issued a subsequent related opinion or order on September 13, 2011.
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Vacated by Supreme Court, October 4, 2010 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4482 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DERRICK LAMONT SUMMERS, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 revocation of Summers his appeals supervised release the district term court s 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 violation marijuana pursuant to ( Violation U.S. One ), Sentencing was a Grade Guidelines A 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 1 The district court sentenced Summers to imprisonment and three years supervised release. 2 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 Carolina s could be structured imposed sentencing for this system is crime 15 under North 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 revocation sentences. facts and materials legal before review for supervised release See United States v. Chong, 285 F.3d 343, 346-47 (4th Cir. 2002). the district court. of Accordingly, we affirm the judgment of We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 4
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