Filed: Aug. 24, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5242 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEE THOMPSON, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:09-cr-00135-RJC-1) Submitted: June 23, 2011 Decided: August 24, 2011 Before DAVIS, KEENAN, and DIAZ, Circuit Judges. Vacated in part, affirmed in part, and remanded by unpublished per
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-5242 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEE THOMPSON, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:09-cr-00135-RJC-1) Submitted: June 23, 2011 Decided: August 24, 2011 Before DAVIS, KEENAN, and DIAZ, Circuit Judges. Vacated in part, affirmed in part, and remanded by unpublished per ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5242
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEE THOMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00135-RJC-1)
Submitted: June 23, 2011 Decided: August 24, 2011
Before DAVIS, KEENAN, and DIAZ, Circuit Judges.
Vacated in part, affirmed in part, and remanded by unpublished
per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, Rahwa
Gebre-Egziabher, Assistant Federal Defenders, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., for Appellant. Anne M.
Tompkins, United States Attorney, Charlotte, North Carolina, Amy
E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lee Thompson appeals the 60-month sentence imposed after he
pleaded guilty to one count of unlawful possession or transport
of a firearm by a convicted felon in violation of 18 U.S.C. §
922(g)(1). Thompson contends that the district court erred when
it sentenced him at offense level 21, instead of offense level
17, based on its conclusion that Thompson had two prior felony
convictions for controlled substances offenses that triggered
the higher offense level under U.S.S.G. § 2K2.1(a)(2). In light
of our recent precedent in United States v. Simmons, __ F.3d __
(4th Cir. 2011) (en banc), we agree with Thompson that one of
the two prior convictions does not qualify as a felony
conviction and, accordingly, we vacate the district court’s
judgment and remand for resentencing.
Thompson also appeals the district court’s order to
reimburse the United States $500 for court-appointed attorney’s
fees. Thompson did not object at sentencing but now contends
the district court plainly erred by issuing the reimbursement
order without having found sufficient evidence demonstrating
that he has the ability to pay. Finding no plain error, we
affirm.
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I.
We first address Thompson’s claim that the district court
erred in imposing a 60-month sentence. At sentencing, the
district court determined that Thompson’s offense level was 21,
setting the Guidelines range at 57 to 71 months. Thompson
objected to this determination because one of the predicate
offenses used to calculate the offense level under §
2K2.1(a)(2), a 2004 North Carolina conviction for selling a
counterfeit controlled substance, did not actually expose
Thompson to more than one year imprisonment.
Following the precedent established by United States v.
Harp, 406 F.3d 242 (4th Cir. 2005), and United States v. Jones,
195 F.3d 205 (4th Cir. 1999), the sentencing judge rejected
Thompson’s argument and found that Thompson’s prior conviction
could be used to enhance his sentence because the maximum
aggravated sentence that could be imposed for the offense
exceeded one year. The court then imposed a sentence of 60
months’ imprisonment followed by three years of supervised
release. Thompson objected to the sentence and timely appealed.
We review a sentence imposed by the district court under an
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). We “must first ensure that the district court
committed no significant procedural error, such as failing to
3
calculate (or improperly calculating) the Guidelines range.”
Id.
Thompson’s North Carolina conviction of selling a
counterfeit controlled substance is designated a Class I felony,
which is punishable by a sentence exceeding one year
imprisonment, but only if the defendant’s prior record level at
the time of the conviction is V or higher. N.C. Gen. Stat. §§
90-95(a)(2), 15A-1340.17(c) & (d). The Presentence
Investigation Report shows that Thompson’s convictions prior to
his sentencing for the 2004 North Carolina conviction would have
placed him at a prior record level IV.
Our recent decision in Simmons requires that we vacate
Thompson’s sentence. In Simmons, we considered the precise
question of whether a defendant’s North Carolina prior
conviction was for an “ ‘offense that is punishable by
imprisonment for more than one year.’ ” United States v.
Simmons, -- F.3d --, slip op.4. We rejected the rule
established in Harp and Jones that looked to the maximum
aggravated sentence authorized for a particular class of felony
to determine whether the offense is punishable by a term of
imprisonment exceeding one year.
We reasoned that--following recent Supreme Court precedent
in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), and
United States v. Rodriquez, 533 U.S. 377 (2008)--Harp and Jones
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no longer remained good law. We held that, under the North
Carolina Structured Sentencing Act, a defendant is convicted of
a crime “punishable” by more than a year’s imprisonment only if
some offender possessing the same prior record level and
convicted of similar aggravating factors could have received a
sentence exceeding one year. Id. (slip op. 14-19).
Applying the Simmons holding here, we find that Thompson’s
2004 conviction does not qualify as a “felony conviction”
because it was not “punishable . . . for a term exceeding one
year,” U.S.S.G. § 2K2.1 cmt. n.1; an offender possessing the
same prior record level and convicted of similar aggravating
factors could not have received a sentence exceeding one year.
In light of Simmons, Thompson’s advisory Guidelines sentence was
improperly calculated; thus, we vacate the district court’s
sentence and remand for resentencing.
II.
We next review Thompson’s objection to the district court’s
reimbursement order. Because Thompson failed to object to the
order, we apply the plain error standard of review. United
States v. Branch, 537 F.3d 328, 343 (4th Cir. 2008), cert.
denied,
129 S. Ct. 943 (2009); Fed. R. Crim. P. 52(b). To
warrant relief, Thompson must show that there was an “error”
that is “plain” or obvious and that “affect[s] substantial
5
rights.” United States v. Olano, 507 U.S. 725, 732 (1993).
Additionally, we can decline to correct the error unless we find
that it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.”
Id. at 736 (quoting United
States v. Atkinson,
297 U.S. 157, 160 (1936)) (internal
quotations marks omitted).
Before a district court may order reimbursement of court-
appointed counsel fees, it must “find[] that funds are available
for payment from or on behalf of a person furnished
representation.” 18 U.S.C. § 3006A(f). An explicit finding on
the record that the defendant has the ability to pay is not
required, and we may uphold reimbursement orders even if the
sentencing court did not make a specific finding on availability
of funds as long as there is sufficient evidence to support the
court’s decision and the defendant did not object to that
evidence. See United States v. Behnezhad, 907 F.2d 896, 900
(9th Cir. 1990); United States v. Gurtunca,
836 F.2d 283, 288
(7th Cir. 1987).
We find sufficient evidence in the record to support the
district court’s reimbursement order. Thompson’s history of
prior work and the district court’s instruction that Thompson
receive vocational training and complete his GED while
incarcerated supported the district court’s finding that funds
6
would be available to reimburse Thompson’s court-appointed
counsel fees.
The district court’s order also made clear that if Thompson
could not make reimbursement immediately, he could make payments
through the Inmate Financial Responsibility Program. Finally,
if any balance remained following Thompson’s release from
prison, the Court directed Thompson to make a minimum payment of
$50 per month while on supervised release, but permitted the
schedule to be modified based on Thompson’s economic
circumstances. Based on this record, the district court did not
plainly err in ordering the reimbursement for court-appointed
attorney’s fees.
Even assuming error, Thompson has not shown that the error
affected his “substantial rights.” In most cases, an error
affecting substantial rights means the error was prejudicial, or
it affected the outcome of the district court proceedings.
Olano, 507 U.S. at 734. The defendant also bears the burden of
persuasion with respect to prejudice.
Id. Thompson has not
shown that he was prejudiced by the district court’s
reimbursement order. As we have already noted, payments while
Thompson is imprisoned will be in accord with the Inmate
Financial Responsibility Program, and, upon his release, a
probation officer will monitor Thompson’s economic circumstances
and recommend changes if warranted. Finally, if the Government
7
attempts to revoke his supervised release for non-payment,
Thompson may assert lack of funds as a defense. See Gurtunca,
836 F.2d at 289. Accordingly, we affirm the district court’s
reimbursement order.
For the foregoing reasons, we (1) vacate the district
court’s imposition of a 60-month term of imprisonment and remand
for resentencing, and (2) affirm the district court’s
reimbursement order. 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.
VACATED IN PART,
AFFIRMED IN PART,
AND REMANDED
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