PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4775
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
NORMAN ALAN KERR,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:09-cr-00290-NCT-1)
Argued: September 19, 2013 Decided: December 3, 2013
Before AGEE, DAVIS, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the majority
opinion, in which Judge Agee joined. Judge Davis wrote a
dissenting opinion.
ARGUED: George Entwistle Crump, III, Rockingham, North Carolina,
for Appellant. Ripley Eagles Rand, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF:
Robert A. J. Lang, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina; Tammy
Chen Hsu, Second Year Law Student, WAKE FOREST UNIVERSITY SCHOOL
OF LAW, Winston-Salem, North Carolina, for Appellee.
DIAZ, Circuit Judge:
A jury convicted Norman Alan Kerr of possession of a
firearm after being previously convicted of a crime punishable
by imprisonment for a term exceeding one year, in violation of
18 U.S.C. § 922(g)(1). The district court determined that Kerr
qualified as an armed career criminal under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C § 924(e), and sentenced him to
268 months’ imprisonment.
Kerr raises three issues in this appeal. First, he
contends that his prior North Carolina state convictions do not
qualify as predicate felonies for sentencing under the ACCA
because he was sentenced in the mitigated range--as opposed to
the presumptive range--of punishment under North Carolina’s
Structured Sentencing Act. Second, he argues that the same
reasoning precludes his § 922(g)(1) conviction, which similarly
requires a predicate felony offense. Finally, Kerr asserts that
his counsel in his initial appeal rendered ineffective
assistance by failing to challenge his conviction on the basis
that he lacked a predicate felony. We disagree with Kerr’s
first two arguments and find that the third one is moot. We
therefore affirm the district court’s judgment.
2
I.
Kerr was charged with one count of possession of a firearm
by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1),
924(e). The indictment alleged that, for the purposes of the
ACCA, Kerr had previously been convicted of three violent
felonies or serious drug offenses punishable by imprisonment for
a term greater than one year. The record establishes that Kerr
had three 2008 North Carolina state convictions for felony
breaking and entering. 1
Following a jury trial, Kerr was convicted of possession of
a firearm by a convicted felon. At his sentencing hearing, Kerr
objected to his designation as an armed career criminal under
§ 924(e), which required that Kerr have a combination of three
convictions for violent felonies or serious drug offenses. The
district court overruled the objection, relying on then-binding
precedent that a North Carolina state conviction constitutes a
crime punishable by a term of imprisonment exceeding one year
“if any defendant charged with that crime could receive a
sentence of more than one year,” United States v. Harp, 406 F.3d
242, 246 (4th Cir. 2005), overruled by United States v. Simmons,
1
The indictment also alleges that Kerr had been convicted
of other crimes that were punishable by imprisonment for a term
exceeding one year. The government concedes, and we agree, that
Kerr could not have received a sentence in excess of one year
for those offenses.
3
649 F.3d 237 (4th Cir. 2011) (en banc). As a result, the court
sentenced Kerr under the ACCA to 268 months’ imprisonment.
Kerr appealed, arguing that the district court erred in
denying his motion to substitute counsel and in sentencing him
under the ACCA. We placed the appeal in abeyance pending our
decision on rehearing in Simmons. Our en banc opinion in
Simmons overruled Harp and held that a North Carolina conviction
is a crime punishable by a term of imprisonment exceeding one
year only if the particular defendant is eligible for such a
sentence, taking into account his criminal history and the
nature of his offense. See 649 F.3d at 247 & n.9.
We subsequently affirmed the district court's denial of
Kerr's motion to substitute counsel and vacated Kerr’s sentence
because Harp was no longer good law. With respect to
sentencing, we expressed no opinion regarding whether Kerr’s
prior state convictions qualified as predicate felonies.
On remand, Kerr’s counsel filed a motion asking the court
to vacate Kerr’s conviction and dismiss the indictment. Prior
to resentencing, the probation officer prepared a supplement to
the original presentence investigation report, concluding that
Kerr’s 2008 state breaking and entering convictions were each
punishable by a presumptive maximum sentence of 14 months’
imprisonment and thus qualified as ACCA predicates. The
district court denied counsel’s motion to vacate and dismiss.
4
Agreeing that the prior breaking and entering convictions
qualified as ACCA-predicate crimes, the court again sentenced
Kerr to 268 months’ imprisonment. This appeal followed.
II.
A.
We review de novo the question of whether a prior state
conviction is a predicate felony for the purposes of federal
criminal law. See United States v. Jones, 667 F.3d 477, 482
(4th Cir. 2012). In order for a defendant to be sentenced as an
armed career criminal on a felon-in-possession conviction, the
defendant must have a combination of three convictions for
violent felonies or serious drug offenses. 18 U.S.C. § 924(e).
A violent felony is a crime of violence punishable by a term
exceeding one year of imprisonment. 18 U.S.C. § 924(e)(2)(B).
B.
To properly analyze Kerr’s arguments, we must first review
his 2008 state convictions under the sentencing regime mandated
by North Carolina’s statutory framework.
North Carolina’s Structured Sentencing Act directs a judge
to impose felony sentences based on two criteria: the designated
offense class and the offender’s prior record level. N.C. Gen.
Stat. § 15A-1340.13(b). The Act, or in certain cases a
different statute, sets forth the offense class. Id. § 15A-
5
1340.17(a). The sentencing judge calculates the offender’s
prior record level by adding the points assigned to each of the
offender’s prior convictions. Id. § 15A-1340.14(a)-(b).
Next, the judge matches the offense class and prior record
level using a statutory table, which provides three sentencing
ranges--a mitigated range, a presumptive range, and an
aggravated range. Id. § 15A-1340.17(c). As a default, the
judge sentences the defendant within the presumptive range. The
judge may deviate from the presumptive range, however, if the
judge makes written findings of aggravating or mitigating
factors established by the Act, finds that aggravating factors
outweigh mitigating factors (or vice versa), and chooses to
depart from the presumptive range. 2 Id. §§ 15A-1340.13(e), 15A-
1340.16(b), (c).
After identifying the applicable sentencing range, the
judge must select the defendant’s minimum sentence from within
2
With respect to the aggravated sentencing range, a judge
may depart only if the state has provided the defendant with
written notice of its intent to prove the necessary aggravating
factors at least 30 days before the trial or entry of a plea.
Id. § 15A-1340.16(a6). Moreover, with two exceptions, a jury
must have found aggravating factors exist beyond a reasonable
doubt or the defendant must have pleaded to the existence of
those factors. See id. §§ 15A-1340.16(a)-(a1), (b). With
respect to the mitigated sentencing range, the defendant bears
the burden of proving any mitigating factors by a preponderance
of the evidence. Id. § 15A-1340.16(a).
6
that range. 3 Id. § 15A-1340.17(c). Once the judge selects the
minimum sentence, separate statutory charts provide the
corresponding maximum sentence. Id. § 15A-1340.17(d)-(e).
C.
We turn now to Kerr’s three 2008 breaking and entering
convictions, which constituted Class H felonies. At the time of
sentencing for those state convictions, Kerr had a prior record
level of IV. Pursuant to the statutory charts, he thus faced a
presumptive minimum term of 9 to 11 months' imprisonment and a
corresponding presumptive maximum sentence of 14 months’
imprisonment. 4
The state sentencing judge found, however, that the factors
in mitigation outweighed those in aggravation and that a
mitigated sentence was justified. The judge then exercised her
discretion to depart from the presumptive range and sentenced
Kerr in the mitigated range. The mitigated range included a
possible maximum sentence of 11 months’ imprisonment.
3
In rare cases where the judge finds “extraordinary
mitigating factors,” the judge may impose a lesser sentence.
Id. § 15A-1340.13(g). The judge does not have discretion to
impose a more severe sentence, however, even in extraordinary
cases. Simmons, 649 F.3d at 240 n.2.
4
After Kerr was sentenced for the three 2008 breaking and
entering convictions, the Act’s statutory charts were amended to
increase the maximum sentences. See Justice Reinvestment Act of
2011, 2011 N.C. Sess. Laws 192 §§ 2(e)-(f).
7
Ultimately, the judge sentenced Kerr to 8 to 10 months’
imprisonment.
III.
A.
Kerr contends that because the state court judge chose to
sentence him in the mitigated range, he could not have been
sentenced to a term of imprisonment for greater than one year
for any of his three 2008 breaking and entering convictions. 5 As
a result, Kerr contends that he lacks the requisite predicate
felonies for sentencing as an armed career criminal under this
court’s reasoning in Simmons.
Simmons did not, however, decide the precise issue before
us. Rather, we considered there whether a prior North Carolina
state conviction for marijuana possession, for which the
defendant faced no possibility of imprisonment, constituted an
offense punishable by imprisonment for more than one year,
thereby triggering a sentencing enhancement under the Controlled
Substances Act. Simmons, 649 F.3d at 239. A panel of this
court originally affirmed Simmons’s sentence in an unpublished
disposition, but the Supreme Court vacated that judgment and
5
Kerr does not contest that these convictions were for
crimes of violence.
8
remanded the case for further consideration in light of
Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010). Simmons,
649 F.3d at 239.
In Carachuri-Rosendo, the question presented was whether a
lawful permanent resident of the United States was barred from
seeking cancellation of removal under the Immigration and
Nationality Act (the “INA”) because he had previously been
convicted of an aggravated felony. 130 S. Ct. at 2580. As the
Court explained, the INA defined an “aggravated felony” to
include any crime “punishable as a federal felony” under the
Controlled Substances Act--i.e., a crime for which the “maximum
term of imprisonment authorized” exceeds one year. Id. at 2581
(internal quotation marks omitted).
Carachuri-Rosendo had previously been convicted of two
misdemeanor drug possession offenses in Texas. Id. at 2580.
The government argued nonetheless that Carachuri-Rosendo had
been convicted of an aggravated felony because he hypothetically
could have received a two-year sentence for his second
misdemeanor offense if he had been prosecuted in federal court.
Id. at 2582. This was true because a defendant may receive a
two-year maximum sentence under federal law for possession of
narcotics if the defendant has a prior drug conviction. Id. at
2581.
9
The Court, however, rejected this hypothetical approach,
reasoning that the statutory text “indicates that we are to look
to the conviction itself as our starting place, not to what
might have or could have been charged.” Id. at 2586. Examining
Carachuri-Rosendo's second state conviction, the Court noted
that he was convicted of a misdemeanor simple drug possession
offense without any finding of recidivism. Id. The maximum
prison sentence authorized for such a conviction was one year.
Id. at 2581 n.4. Therefore, the Court held that the petitioner
was “not actually convicted” of an offense punishable by a term
of imprisonment exceeding one year. Id. at 2586-87 (internal
quotation marks omitted).
We subsequently determined that Carachuri-Rosendo required
us to vacate Simmons’s sentence. In reaching this conclusion,
we explained that Carachuri-Rosendo directly undermined our
earlier decision in Harp. Simmons, 649 F.3d at 246.
Specifically, we determined that in deciding whether a
sentencing enhancement was appropriate under the Controlled
Substances Act, a district court could no longer look to a
hypothetical defendant with the worst possible criminal history.
Instead, we held that a sentencing court may only consider the
maximum possible sentence that the particular defendant could
have received. See id. at 247 & n.9. Conducting that analysis,
we explained, “requires examination of three pieces of evidence:
10
the offense class, the offender’s prior record level, and the
applicability of the aggravated sentencing range.” Id. at 247
n.9.
Applying that analysis, we first found that Simmons was
convicted of a Class I felony and had a prior record level of I.
Id. at 240-41. We explained that
[u]nder the Act, a Class I felony is punishable by a
sentence exceeding twelve months' imprisonment only
if the State satisfies two conditions. First, the
State must prove (or the defendant must plead to)
the existence of aggravating factors sufficient to
warrant the imposition of an aggravated sentence.
Second, the State must demonstrate that the
defendant possesses fourteen or more criminal
history points, resulting in a "prior record level"
of at least 5. If the State fails to satisfy either
of these conditions, a Class I offender can never
receive more than one year's imprisonment.
Id. (internal citations omitted). Because the State satisfied
neither condition, id. at 241, we held that Simmons’s prior
North Carolina conviction could not be used to enhance his
federal sentence, see id. at 244.
Following our decision in Simmons, we have rejected
defendants’ arguments that they lack the requisite predicate
felonies because the actual sentence they received under North
Carolina law was less than a year of imprisonment. See, e.g.,
United States v. Edmonds, 679 F.3d 169, 176 (4th Cir.), vacated
on other grounds, 133 S. Ct. 376 (2012); United States v. Leach,
446 F. App’x 625, 626 (4th Cir. 2011) (unpublished). In
11
Edmonds, for example, the defendant argued that he lacked a
predicate felony offense because he actually received a sentence
of 9 to 11 months’ imprisonment. 6 679 F.3d at 176. Edmonds had
a prior record level of IV, the offense was a Class H felony,
and there was no showing of aggravating factors. Id. Under the
Structured Sentencing Act, he faced a maximum presumptive
sentence of 14 months’ imprisonment. Id.
We concluded that Edmonds had a qualifying predicate felony
because he “could have received” a sentence greater than one
year. Id. at 176-77. We reached the same result in Leach. See
446 F. App’x at 626 (“[W]hile Leach was only sentenced to nine-
to-eleven months, his offense was punishable by more than twelve
months, as the state court had the discretion to sentence Leach
to a maximum sentence of eleven-to-fourteen months imprisonment
without any further factual or legal findings.”). In both
cases, the defendant was exposed to a sentence in excess of one
year even though he actually received a sentence of less than
one year. The maximum sentence the particular defendant faced--
not the sentence actually imposed--controlled whether the
defendant had a qualifying predicate felony.
6
Edmonds conceded that one of his prior convictions at
issue was a qualifying predicate felony. 679 F.3d at 176.
12
B.
Kerr’s appeal presents an issue that neither Simmons nor
its progeny expressly address: Must a district court, in
determining whether a defendant has the requisite predicate
felonies for sentencing as an armed career criminal, consider
the fact that the defendant received a mitigated sentence of
less than one year in prison under North Carolina law for those
felonies? To answer this question, we return to the Structured
Sentencing Act.
As explained above, North Carolina law establishes three
sentencing ranges based on the appropriate offense class and
prior record level. N.C. Gen. Stat. § 15A-1340.17(c). The
presumptive sentencing range is the default. The sentencing
judge may deviate from the presumptive range if the judge makes
written findings of aggravating or mitigating factors, finds
that aggravating factors outweigh mitigating factors (or vice
versa), and chooses to depart. Id. §§ 15A-1340.13(e), 15A-
1340.16(b), (c); see also Simmons, 649 F.3d at 240. But North
Carolina law also provides that a judge may sentence a defendant
in the presumptive range even if the judge finds that mitigating
factors outweigh those in aggravation. State v. Bivens, 573
S.E.2d 259, 261-62 (N.C. Ct. App. 2002).
The state court judge who sentenced Kerr found that the
relevant mitigating factors outweighed those in aggravation and
13
then chose to exercise her discretion by sentencing Kerr to a
mitigated range sentence of 8 to 10 months’ imprisonment for his
crimes. But just as in Edmonds, the judge remained free at all
times to sentence Kerr to a presumptive prison term of up to 14
months.
We have great respect for our distinguished colleague in
dissent. But in focusing--we think myopically--on the actual
sentence 7 that Kerr received after the state judge weighed the
relevant factors in aggravation and mitigation, our friend seeks
to rewrite the teachings of Simmons and Edmonds. We, however,
are bound to apply the law as it exists, not as our colleague
would like it to be. Because the maximum possible prison
sentence that Kerr faced for his prior state convictions
exceeded one year, and because that potential punishment was far
from hypothetical, 8 we hold that Kerr’s prior state convictions
7
The dissent says that it does not argue “for an assessment
of the defendant’s actual sentence” but rather “for an
assessment of the defendant’s actual sentencing range.” Dis.
op. at 27 n.1. In our view, however, this is a distinction
without a difference, as both are inconsistent with the
reasoning of Simmons and Edmonds.
8
Our holding today is not, as the dissent paints it, “Harp
redux,” nor is it parodoxical. Harp summarily branded every
defendant facing an ACCA enhancement for his prior North
Carolina convictions as the worst possible offender under North
Carolina’s sentencing scheme. While Simmons rejected that
hypothetical approach to federal sentencing, we subsequently
made clear “that the qualification of a prior conviction [as a
predicate offense] does not depend on the sentence [a defendant]
(Continued)
14
qualify as predicate felonies for sentencing under the ACCA.
Our holding remains faithful to our directive in Simmons
requiring that sentencing courts examine “three pieces of
evidence: the offense class, the offender’s prior record level,
and the applicability of the aggravated sentencing range,” 649
F.3d at 247 n.9. The district court properly considered these
three elements and therefore did not err in sentencing Kerr as
an armed career criminal.
IV.
Kerr also contends that the district court erred in denying
his motion to vacate his § 922(g)(1) conviction and dismiss the
indictment, again because he lacked the requisite predicate
felony offense. 9 In order for a defendant to be convicted of
possession of a firearm by a convicted felon, he must have been
previously convicted of a crime punishable by a term of
imprisonment exceeding one year. 18 U.S.C. § 922(g)(1).
actually received but on the maximum sentence that he could have
received for his conviction.” Edmonds, 679 F.3d at 176. Our
decision today flows from a straightforward application of our
precedent.
9
We asked the parties to brief whether the mandate rule
foreclosed the district court, on remand, from considering
Kerr’s challenge to his conviction. Both parties contend that
the mandate rule does not foreclose this argument, and we agree.
15
As we have already explained, Kerr faced a presumptive
maximum sentence of 14 months’ imprisonment for his state
convictions. Therefore, Kerr has the requisite predicate felony
for his § 922(g)(1) conviction. We thus hold that the district
court did not err in denying Kerr’s motion to vacate his
conviction and dismiss the indictment.
V.
Finally, we asked the parties to brief whether Kerr’s prior
appellate counsel in his first appeal rendered ineffective
assistance because he failed to challenge Kerr’s conviction on
the basis that Kerr lacked a predicate felony.
When we remanded this case to the district court following
Kerr’s first appeal, the district court considered Kerr’s
challenge to his conviction on the merits. And today we have
concluded that Kerr is not actually innocent of his § 922(g)(1)
conviction on the basis that he lacks a predicate felony. As a
result, Kerr’s contention that his prior appellate counsel was
ineffective for failing to raise this very issue in his first
appeal is now moot.
16
VI.
For the reasons given, we affirm the district court’s
judgment.
AFFIRMED
17
DAVIS, Circuit Judge, dissenting:
Respectfully, I dissent.
The majority opinion runs counter to Supreme Court
precedent, Carachuri-Rosendo v. Holder, 130 S. Ct. 27 (2010),
and effectively guts our Circuit precedent, United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). It violates
principles of comity and federalism by directing federal
district courts to ignore the careful sentencing decisions of
their state counterparts. And it goes to such lengths all to
affirm a twenty-two-year sentence imposed on a fifty-one-year
old mentally ill veteran who had previously never served more
than ten months in prison, tagging him with the moniker “armed
career criminal.” We can do much better than this.
The Armed Career Criminal Act requires a fifteen-year
minimum prison term for a defendant convicted of being a felon
in possession of a firearm if he had three previous convictions
“for a violent felony or a serious drug offense.” 18 U.S.C. §§
924(e)(1), 922(g). A “violent felony” is defined as, among other
things, “any crime punishable by imprisonment for a term
exceeding one year.” Id. § 924(e)(2)(B). The issue in this case
is: When a North Carolina state judge has made a finding that
mitigating factors are present and sufficient to outweigh any
aggravating factors, and the defendant’s mitigated sentencing
range for a North Carolina conviction therefore does not exceed
18
one year, is the conviction for a crime “punishable by
imprisonment for a term exceeding one year”?
The answer is and should be no, but the majority answers
yes. It holds that federal courts should ignore the defendant’s
mitigated range of imprisonment as determined by the North
Carolina judge, N.C. Gen. Stat. § 15A-1340.16(b), and instead
look to the sentence the state judge could have imposed had she
decided, hypothetically, to ignore her own finding that
mitigating circumstances justified a sentence in a range that
cannot exceed one year, ante, at 13. See N.C. Gen. Stat. § 15A-
1340.16(c).
The majority’s answer is fantasy. It inserts an Alice-in-
Wonderland analysis into what should be a straightforward
question of statutory construction. But most troubling about the
majority opinion is that it resurrects a speculative mode of
analysis that we – on the foundation of unmistakable Supreme
Court authority – discarded in Simmons, 649 F.3d at 237. A bit
of history illustrates why the majority opinion is déjà vu.
In United States v. Harp, 406 F.3d 242, 245-46 (4th Cir.
2005), we held that a North Carolina conviction for possession
with intent to distribute marijuana was, for purposes of the
career offender Guideline, U.S. Sentencing Guideline § 4B1.1(a),
a predicate “controlled substance offense” “punishable by
imprisonment for a term exceeding one year.” Even though the
19
defendant’s maximum possible punishment was only twelve months,
we held that the proper inquiry was whether a hypothetical
defendant with the worst possible criminal history “could” have
received a sentence of over twelve months for committing the
same crime. Id. at 246. In other words, the key inquiry was:
What was a possible outcome for a hypothetical defendant who
committed the same crime?
We rejected this speculative approach in Simmons, holding
that “the mere possibility that [the defendant’s] conduct,
coupled with facts outside the record of conviction, could have
authorized a conviction of crime punishable by more than one
year’s imprisonment cannot and does not demonstrate that [the
defendant] was actually convicted of such a crime.” 649 F.3d at
244-45 (quotations and citations omitted) (emphasis added). The
district court in Simmons, relying on Harp, had applied the
Controlled Substances Act sentencing enhancement; it found that
the defendant’s prior North Carolina conviction for marijuana
possession – for which he faced no possibility of imprisonment –
qualified as a felony drug offense “punishable by imprisonment
for more than one year,” 21 U.S.C. § 802(44). Id. at 240-41. We
vacated the defendant’s sentence and put an end to Harp. Id. at
241.
The primary basis for our decision was Carachuri-Rosendo,
130 S. Ct. at 2577, a Supreme Court precedent involving the
20
Immigration and Nationality Act. Simmons, 649 F.3d at 244-45.
The issue there was whether a Texas conviction for misdemeanor
possession of Xanax without a prescription qualified as an
“aggravated felony” punishable by imprisonment for more than one
year. Carachuri, 130 S. Ct. at 2580-81. The Fifth Circuit held
that it did; the Supreme Court reversed, holding that “the mere
possibility, no matter how remote,” that the defendant could
have received a two-year sentence had he been charged in federal
court for the same criminal conduct did not transform the Texas
conviction into an aggravated felony. Id. at 2583.
Carachuri involved a different statutory scheme and an
analysis with multiple layers of speculation, but we concluded
in Simmons that the relative simplicity of the Controlled
Substances Act analysis did “not render the Carachuri holding
inapplicable.” Simmons, 649 F.3d at 248. Instead, we construed
Carachuri as a prohibition on considering “facts not at issue in
the crime of conviction” in determining whether a conviction
qualifies as a predicate felony. Id. at 248 (quotations and
citation omitted).
Which brings me to this case: It is difficult to see how
the majority’s hypothetical mode of analysis does not run square
into the teeth of what Carachuri and Simmons seek to prohibit.
As the majority opinion makes clear, the North Carolina state
judge acted consistent with the provisions of the North Carolina
21
Structured Sentencing Act: she made a finding that Kerr’s
mitigating factors outweighed those in aggravation, N.C. Gen.
Stat. § 15A-1340.16(b); Kerr had to prove those findings by a
preponderance of the evidence, id. § 15A-1340.16(a); her
mitigation finding was – and had to be – in writing and part of
the record, id. § 15A-1340.16(c); and she used the mitigation
finding to arrive at a sentencing range of eight to ten months,
as contemplated by North Carolina law.
Despite all of this, the majority concludes that Kerr’s
conviction was for a “crime punishable by imprisonment for a
term exceeding one year” because the North Carolina state judge
“may,” ante, at 13, have nonetheless imprisoned Kerr for up to
fourteen months. In other words, Harp redux: “[T]he mere
possibility, no matter how remote,” Carachuri, 130 S. Ct. at
2583, coupled with an analysis that ignores a fact in the
record, is sufficient to conclude that Kerr could have received
a sentence of over one year. In doing so, it transforms Kerr
into an armed career criminal deserving of a minimum of fifteen
years of “3 hots and a cot,” People v. Shulman, 843 N.E.2d 125,
134 (N.Y. 2005), on the tab of United States taxpayers.
The majority responds to all this with a paradox: first, it
says that the issue in this case was not before us in Simmons,
ante, at 13 (“Kerr’s appeal presents an issue that neither
Simmons nor its progeny expressly addressed”); second, it says
22
that a footnote in Simmons resolves this case, ante, at 15 (“Our
holding remains faithful to our directive in Simmons requiring
that sentencing courts examine ‘three pieces of evidence: the
offense class, the offender’s prior record level, and the
applicability of the aggravated sentencing range,’ 649 F.3d at
247 n.9.”).
Let’s unscramble that egg: The majority’s position is
that although Simmons does not mandate a particular outcome
here, its “directive” is nonetheless consistent with the
majority’s decision. Wrong on both counts. But, even if Simmons
were deemed in some sense “consistent” with the majority’s
decision, the decision I reach is equally “consistent” and
achieves the more sensible result.
The majority’s first argument, that Simmons does not
mandate a particular outcome here, is incorrect because it is
based on a misunderstanding of the issue in this case. The
majority frames the issue as: “Must a district court, in
determining whether a defendant has the requisite predicate
felonies for sentencing as an armed career criminal, consider
the fact that the defendant received a mitigated sentence of
less than one year in prison under North Carolina law for those
felonies?” Ante, at 13 (emphasis added). That framing subtly
misconstrues the issue in this case: it is not the “fact” of the
defendant’s actual sentence that is relevant or the focus of
23
this analysis, but the defendant’s actual sentencing range. The
North Carolina state court judge made an express finding – a
real-world fact - that mitigating factors outweighed those in
aggravation; indeed, she made that finding because it is a
predicate to sentencing in the mitigated range. N.C. Gen. Stat.
§ 15A-1340.16(b).
The majority’s framing of the issue seems to be based on a
peculiar understanding of the North Carolina Structured
Sentencing Act: it thinks that a North Carolina judge is always
in the presumptive range because she has the discretion to
sentence in that range even after she’s made the mitigation
finding. State v. Bivens, 573 S.E.2d 259, 262 (N.C. Ct. App.
2002).
Although the majority is correct that a North Carolina
judge retains the discretion to sentence in the presumptive
range even when the judge finds several mitigating factors, the
existence of that possibility alone is an insufficient basis for
ignoring the range as determined according to the North Carolina
Structured Sentencing Act. We said as much in Simmons: North
Carolina judges always have the discretion to use the
presumptive range even after the state has proven the existence
of aggravating factors, N.C. Gen. Stat. § 15A-1340.16(a), but we
stated that federal district courts should pay close attention
to the actual presence and proof of those aggravating factors,
24
rather than some hypothetical analysis, because it is a more
coherent and just analysis that better informs whether a
defendant is deserving of a major imprisonment term. Simmons,
649 F.3d at 244-45, 247 n.9. In the face of this, the majority
opinion is silent on why the judge’s retained discretion renders
her decision to affirmatively make the mitigation finding and to
impose a sentence based on that finding a legal nullity. If
anything, we should honor the judge’s mitigation finding
because, as the counterpart to the aggravation finding, it is a
predicate to deviating from the presumptive range (in this case,
to the mitigated range). N.C. Gen. Stat. § 15A-1340.16(b).
In Carachuri, the Court acknowledged that Texas law
afforded prosecutors broad discretion in determining whether to
seek a conviction whose punishment would satisfy an element of
federal law (there, in the immigration context); nevertheless,
that fact did not persuade the Court to base its analysis of
federal law on the existence of such discretion. See 130 S. Ct.
at 2588. It is unclear to me why, if the existence of state
prosecutorial discretion is not an acceptable basis for an
interpretation of federal immigration law that leads to
draconian outcomes, the existence of a similar judicial
discretion should permit an interpretation of federal sentencing
law that, correspondingly, leads to draconian outcomes, as the
majority concludes here. Paradox, indeed.
25
The majority’s approach builds an unwarranted asymmetry
into our treatment of North Carolina convictions, where we pay
special attention, if not conclusive attention, to a finding of
aggravation, but purposely ignore a judge’s finding of
mitigation. To build our jurisprudence on this asymmetry
expresses the view that federal sentencing courts do not really
care about a defendant’s criminal background – or at least, they
only care when it offers up the opportunity to send him to
prison for a longer period of time than common sense and simple
justice demand.
The majority’s second argument is that its holding “remains
faithful to our directive in Simmons requiring that sentencing
courts examine ‘three pieces of evidence: the offense class, the
offender’s prior record level, and the applicability of the
aggravated sentencing range,’ 649 F.3d at 247 n.9,” ante, at 15.
This protestation is unavailing. Indeed, what a member of
today’s majority said in railing against the en banc majority in
Simmons applies with genuine force here: “The majority opinion
puts great weight on footnote [9] of [Simmons] to undergird its
position; but that weight is more than the footnote can bear.”
Simmons, 649 F.3d at 255 (Agee, J., dissenting). The core of
Simmons is (obviously) its holding, informed by Supreme Court
precedent, of how the “mere possibility” of a defendant’s
conduct, “coupled with facts outside the record of conviction,”
26
was insufficient for concluding that a conviction was punishable
by more than one year’s imprisonment. 649 F.3d at 244-45
(quotations and citations omitted) (emphasis added). The
majority today makes that line of inquiry sufficient: Kerr’s
criminal conduct, coupled with the “mere possibility” that a
judge could have exercised her discretion to ignore her own
finding of mitigation (a real-world fact in the record),
transforms Kerr’s conviction from one for which he could only
receive eight to ten months into a “crime punishable by
imprisonment for a term exceeding one year.” Id. § 924(e)(2)(B). 1
Because such an analysis is contingent on too many assumptions,
it is quintessentially “hypothetical” and therefore foreclosed
by Simmons and Carachuri.
The majority’s constricted reading of Simmons stems from
its refusal to acknowledge the principles that animated the core
1
The majority is determined to hang its hat on United
States v. Edmonds, 679 F.3d 169, 176-77 (4th Cir. 2012), for the
proposition that “the actual sentence” a defendant receives is
not the relevant point of analysis, ante, at 11-12. Edmonds is
irrelevant because it did not involve a defendant who had
received a mitigation finding. Edmonds, 679 F.3d at 176-77. And
I am not arguing “myopically,” ante, at 14, for an assessment of
the defendant’s actual sentence; I am arguing for an assessment
of the defendant’s actual sentencing range. The majority says
this is a “distinction without a difference,” ante, at 14 n.7.
Of course, if the majority is comfortable contravening the
finding of a state court judge in a state court conviction
sustained pursuant to a state statute, then I suppose the
distinction is probably one without a difference.
27
holding of Simmons: “well-established federalism principles”
that prohibit federal courts from “reject[ing] North Carolina’s
judgment as to the seriousness of a North Carolina crime,
prosecuted in a North Carolina court and adjudicated by a North
Carolina judge,” Simmons, 649 F.3d at 249; deference to the
North Carolina legislature’s “carefully crafted sentencing
scheme,” id. at 249-50; and an unwillingness to permit
peculiarly harsh, “counter-intuitive and unorthodox” results in
federal sentencing, id. (quoting Carachuri, 130 S. Ct. at 2585).
The majority’s decision is violative of all three principles: it
contravenes principles of federal respect for state judges and
their assessment of offenders, the convictions those offenders
incur, and the just sentences they deserve; it re-writes for
purposes of federal law a carefully-crafted state statute; and
it results in preposterous sentences.
It is the last point that resonates most. The majority
opinion is profoundly wrong on the law. But what is most
concerning is how completely untethered its analysis is from the
task before federal district judges in these cases: to decide
who should be treated as a repeat offender responsible for a
disproportionately large percentage of violent crimes, i.e., an
armed career criminal. See United States v. Hawkins, 811 F.2d
210, 216-17 (3d Cir. 1987) (discussing the legislative history
of the precursor to the current form of the Armed Career
28
Criminal Act). For example, suppose a petty criminal receives a
mitigation finding because he proved to the North Carolina state
judge by a preponderance of the evidence that he was under
coercion when he committed the crime, N.C. Gen. Stat. § 15A-
1340.16(e)(1), or was of limited mental capacity, id. § 15A-
1340.16(e)(4), or was a minor, id. § 15A-1340.16(e)(6). Suppose
also that the North Carolina judge, after determining that those
mitigating factors outweigh those in aggravation, concludes that
the defendant’s range is eight to ten months. The majority’s
decision today tells federal district courts to repudiate that
finding and treat that defendant as if he were the mastermind of
the crime, a criminal genius, or an adult, and impose a fifteen-
year minimum sentence (or something closer to the twenty-two
year sentence imposed here). These results were not what
Congress intended. Overreaching by federal prosecutors, who are
sometimes anxious to wield their “armed career criminal” lancets
willy-nilly, see United States v. Foster, 662 F.3d 291, 301 (4th
Cir. 2011) (Wynn, J., dissenting); United States v. Foster, 674
F.3d 391, 398 (4th Cir. 2012) (Motz, J., dissenting from the
den. of reh’g); id. at 403-04 (Davis, J., dissenting from the
den. of reh’g), should not be rewarded in this manner.
And even if there were a colorable argument that Congress
intended these types of results, the rule of lenity requires
much better evidence before adoption of the majority’s
29
construction of the Armed Career Criminal Act. At best, it is
not at all clear what Congress wants federal courts to do with
these peculiar wrinkles in North Carolina’s Structured
Sentencing Act, and we should not render a construction that
increases the penalty on a defendant when that construction is
“based on no more than a guess as to what Congress intended.”
Ladner v. United States, 358 U.S. 169, 178 (1958). The Armed
Career Criminal Act has proved enormously complex in
application; trying to decide how it should interact with
equally complex state sentencing regimes is akin to proclaiming
mastery at reading tea leaves. See United States v. Rodriquez,
553 U.S. 377, 405 (2008) (Souter, J., dissenting) (arguing for
application of the rule of lenity to the Armed Career Criminal
Act). 2 Rather than boldly continue down this dreary path, we
2
As Justice Souter explained:
The rule [of lenity] is grounded in “the
instinctive distaste against men languishing in prison
unless the lawmaker has clearly said they should,” and
we have used it to resolve questions both about metes
and bounds of criminal conduct and about the severity
of sentencing. This policy of lenity means that the
Court will not interpret a federal criminal statute so
as to increase the penalty that it places on an
individual when such an interpretation can be based on
no more than a guess as to what Congress intended.
United States v. Rodriquez, 553 U.S. 377, 405-06 (2008) (Souter,
J., dissenting) (citations omitted). See also United States v.
Granderson, 511 U.S. 39, 54 (1994) (“[W]here text, structure,
(Continued)
30
should exercise judicial restraint by holding that the statute’s
ambiguity coupled with the rule of lenity tips the scales in
favor of the defendant, thereby allowing Congress the
opportunity to provide us with additional guidance, which is so
sorely needed.
Whether a prior state judge has made a written factual
finding that the circumstances in a particular case are atypical
and warrant application of a mitigated sentencing range that by
definition does not exceed one year is a highly relevant data
point in assessing whether an individual is an armed career
criminal. The majority does not think so; it is wrong. But the
true error it commits is justifying its decision by sticking its
head in the sand of legal artifice.
I am willing to believe, and to act on the belief, that “no
one - not even the prosecutors themselves - thinks [a twenty-
two-year sentence on a fifty-one-year-old mentally ill veteran
is] appropriate” under the circumstances of this case. Cf.
United States v. Kupa, --- F. Supp. 2d ---, ---, 2013 WL
5550419, at *1 (E.D.N.Y. Oct. 9, 2013). The law affords us an
opportunity to decide this case on that belief. I deeply regret
the institutional ennui that precludes our doing so.
and history fail to establish that the Government’s position is
unambiguously correct . . . we apply the rule of lenity.”).
31