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What’s in a name? That which we call a…. Felony?

A federal felony is defined as any offense which is punishable by a term of imprisonment of one year or more. For clients charged in federal court with certain firearms or drug offenses, prior state court felony convictions often subjected them to enhanced (and very lengthy) punishments. For example, a client charged in federal court with possession with intent to distribute 280 grams of crack cocaine (normally punishable by a sentence of not less than 10 years and not more than life imprisonment) could have been subjected to an enhanced mandatory statutory penalty of not less than 20 years and not more than life imprisonment, if that client had a prior conviction in North Carolina state court for possession with intent to sell and/or deliver marijuana, which is a Class I felony (which carries a maximum possible punishment of 15 months imprisonment) where the client received a sentence of 5-6 months of imprisonment, which was suspended for a period of 1 year. In this hypothetical, the client could have been subjected to the enhanced mandatory statutory penalty even if the prior North Carolina conviction was the only conviction on his criminal record and even though the client received a probationary sentence for the North Carolina conviction (never spent one day in jail!).

A recent decision in the United States Fourth Circuit Court of Appeals has caused lawyers, judges, and defendants alike to question what North Carolina felony convictions really constitute a “felony” under federal law. In United States v. Simmons, the 4th Circuit held that a felony for federal sentences purposes is not a conviction for any offense which carries a maximum possible punishment of one year or more of imprisonment. Rather, a felony conviction is only one where the specific defendant could have received a sentence of one year or more of imprisonment. See Simmons, — F.3d —-, 2011 WL 3607266 (4th Cir. 2011). In the hypothetical referenced above, the client’s prior North Carolina conviction for possession with intent to sell and/or deliver marijuana is no longer a felony under Simmons, because even if he had been given an active term of imprisonment, the client could not have received one year of imprisonment.

The Simmons decision is going to have a profound impact on prospective prosecutions in federal court. More importantly, this decision nullifies the convictions of thousands of defendants, both those who are currently incarcerated and those who have already served their sentences, who were convicted of possession of a firearm by a felon in federal court, but whose underlying felony conviction in North Carolina state court is no longer a “felony” under the Simmons decision. Similarly, this decision effectively cuts the sentences of thousands of defendants currently incarcerated for drug or firearm offenses, who are serving sentences that were enhanced because of felony convictions that no longer qualify as felony convictions under Simmons.

We are in the process of reviewing all of our files to identify and locate those current and former clients who are impacted by this decision. If you or a loved were convicted in federal court for possession of a firearm by a felon, or were sentenced as a career offender or as an armed career criminal, you may be impacted by this decision. Please contact → our office today to discuss your available options.

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