THE PRUITT OPENING

An unexpected opportunity from the 6th Circuit

HARP• United States v. Harp, 406 F.3d 242 (4th Cir. 2005)

• Held: Under the North Carolina structured sentencing scheme, “to determine whether a conviction is for a crime punishable by imprisonment for more than one year, . . . We consider the maximum sentence that could be imposed for that crime upon the worst possible criminal history.”

• This case involved an armed bank robbery wherein the career offender guideline was applied.

RODRIGUEZ• United States v. Rodriguez, ___ U.S. ___, 128 S.Ct.

1783, 170 L.Ed 719 (May 19, 2008)

• Held: the maximum term of imprisonment . . . Prescribed by law for the state drug convictions at issue was the 10 year maximum set by the applicable state recidivist provision.

• This is a §922(g) case in which the defendant had three prior Washington state drug convictions under a statute that provided for a maximum sentence of 5 years of the first offense and 10 years for second or subsequent offenses. The government counsel contended, and court agreed, that two (not all three) of the defendant’s prior Washington drug convictions qualified as ACCA predicates.

PRUITT• United States v. Pruitt, 545 F.3d 416 (6th Cir. Oct. 21,

2008)

• Held: To determine whether a conviction under North Carolina’s structured sentencing scheme constitutes a “crime punishable by imprisonment for amore than one year” under the career offender guideline, a court must take into account the defendant’s “prior record level” at the time of each conviction.

• This case involved a defendant who pled guilty to one §922(g) count and one manufacturing marijuana count under § 841 with an § 851 enhancement. He was determined to be a career offender based on two prior North Carolina Class I felony drug convictions under structured sentencing.

WHERE DOES THAT TAKE US?• Crimes punishable by

imprisonment for more than one year would exclude:

– CLASS I felonies with PRL of IV and below

– CLASS H felonies with PRL of II and below

FELONY PUNISHMENT CHART

SAMPLE JUDGMENT

PENDING APPEAL IN OUR OFFICE

• UNITED STATES v. HOOKER, (published District Court opinion, 2009 U.S.Dist. LEXIS 339549 E.D.N.C. Apr. 19, 2009) (§922(g) case)

• UNITED STATES v. TERRANCE WILLIAMS (Crack Dist. Career offender case)

• UNITED STATES v. MICHAEL WHITE (§922(g) case)

OTHER CIRCUITS• UNITED STATES V. HILL, 539 F.3d 1213 (10TH Cir.

2008)

• Post Rodriguez the 10th Circuit reversed itself holding that when determining the maximum punishment under the Kansas recidivism statute, the court must consider the worst defendant.

• The Hill case is distinguishable because the Kansas statute allows for upward departures to the highest potential sentence in every case.

WHERE THE IMPACT IS FELT• ACCA

• Career Offender predicates

• Base offense level and criminal history enhancements in gun cases

• Enhancements for prior crimes of violence and controlled substance offenses, etc.

WHAT CAN YOU DO?• Move to withdraw guilty pleas if

client wants to pursue the issue

• Motion to dismiss §922(g) counts

• Object to enhancements, etc.