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4th Circuit strikes down hypothetical sentencing enhancement  (access required)

Was used to incarcerate repeat offenders for longer terms

A federal appeals court has ruled that actual time in prison, rather than the maximum amount a defendant could have gotten, should be considered when judges wish to invoke a repeat-felon sentence. Federal prosecutors in 2008 recommended that Jason Edward Simmons be sentenced to 10 years in prison after he pleaded guilty to possession of marijuana with the intent to distribute. Simmons had been convicted in 1996 in North Carolina state court on a similar marijuana charge, which was punishable by more than a year in prison and thus constituted a felony even though he only served probation. Without the prior felony on his record, he would have served roughly half the ten-year sentence prosecutors sought on the federal conviction. Asheville attorney Andrew Banzhoff (pictured) represented Simmons on his appeal.

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