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United States v. Powell, No. 11-6152

Decided: August 20, 2012

The defendant filed a § 2255 motion requesting that his sentence for a violation of 21 U.S.C. § 846 be vacated as it was impermissibly based upon a prior drug conviction, pursuant to Carachuri-Rosendo v. Holder, 130 S.Ct. 257 (2010).  The Fourth Circuit affirmed the district court’s dismissal of the defendant’s § 2255 motion as untimely and held that Carachuri is a procedural rule, and thus is not applied retroactively to cases on collateral review.

In 2004, Powell was convicted of conspiracy to possess with intent to distribute at least 5 kilograms of cocaine and at least 50 grams of crack cocaine, in violation of 21U.S.C. § 846.  Based on a prior North Carolina drug conviction, Powell was sentenced to an enhanced minimum sentence of 240 months’ imprisonment.  Almost six years later, Powell filed a § 2255 motion, seeking to vacate his sentence in light of Carachuri, which held that the question of whether a prior conviction is an “aggravated felony” as used in the Immigration and Nationality Act (“INA”) must be resolved by looking at the offense for which the defendant was actually convicted, not the offense for which he could have been convicted.  Subsequently, the Fourth Circuit in United States v. Simmons, 649 F.3d 237, 241 (4th Cir. 2011) (en banc), held that, in deciding whether to enhance federal sentences based on prior North Carolina convictions, courts look to the maximum sentence that could have been imposed based on the defendant’s actual level of aggravation and criminal history.  Powell argued that, in light of Carachuri and Simmons, the district court erroneously enhanced his sentence using his North Carolina conviction.  The district court dismissed Powell’s motion as untimely, holding that Powell could not show that any court had held that Carachuri applied retroactively to cases on collateral review.  Powell appealed the district court’s dismissal of his § 2255 motion.

The Fourth Circuit first noted that collateral review is designed to correct violations of long-established rights, but not to overturn cases where the existing law was faithfully applied.  Rules will be applied retroactively only where the Supreme Court has announced a new substantive rule or a new procedural rule which implicates fundamental fairness or accuracy of the criminal proceeding.  Carachuri articles a procedural rule, as it prescribes how a court should construe the INA and how to determine whether a prior conviction qualifies as an aggravated felony.   Because it is a procedural rule, Carachuri is not retroactively applicable to cases on collateral review, and therefore the district court’s dismissal of Powell’s § 2255 as untimely was affirmed.

Judge King dissented on the basis of disagreeing with the majority’s analysis, but concurred in the judgment affirming the district court’s denial of the § 2255 motion.  King found that the Carachuri rule alters the range of conduct or the class of persons punishable by the law, thus it is a substantive rule that applies retroactively.  Because Powell received a lawful sentence, he was ineligible for § 2255 relief.

Full Opinion

-Michelle Theret