PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4114
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CAMDEN TAYLOR BARLOW,
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. (1:14-cr-00182-NCT-1)
Argued: October 28, 2015 Decided: December 21, 2015
Before NIEMEYER and MOTZ, Circuit Judges, and M. Hannah LAUCK,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed in part, vacated in part, and remanded for resentencing
by published opinion. Judge Motz wrote the opinion, in which
Judge Niemeyer and Judge Lauck joined.
ARGUED: Kathleen Ann Gleason, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant. Ripley
Eagles Rand, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee. ON BRIEF: Louis C. Allen, Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greensboro, North Carolina, for Appellant.
DIANA GRIBBON MOTZ, Circuit Judge:
Camden Barlow pled guilty to one count of possession of a
firearm as a felon and, on the basis of prior state felonies,
received an enhanced fifteen year sentence as an armed career
criminal under 18 U.S.C. §§ 922(g)(1) and 924(e) (2012). He
appeals raising two challenges. First, he maintains that he had
not previously committed three violent felonies and so his
sentence as an armed career criminal under § 924(e) cannot
stand. Second, he contends that none of his prior state
convictions qualify as felony predicates under § 922(g)(1). For
the reasons that follow, we conclude that Barlow’s prior state
convictions do constitute felony predicates under § 922(g)(1),
but we must vacate his sentence as an armed career criminal and
remand for resentencing.
I.
On May 27, 2014, a grand jury indicted Barlow for
possession of a firearm after having committed three violent
state felonies, in violation of §§ 922(g)(1) and 924(e).
A year earlier, in April 2013, Barlow had pled guilty in
state court to two counts of felony speeding to elude arrest, in
violation of N.C. Gen. Stat. § 20-141.5(b) (2014). In July
2013, Barlow pled no contest to two counts of felony breaking
and entering, in violation of N.C. Gen. Stat. § 14-54(a) (2014).
2
Barlow received two consecutive sentences of eight to nineteen
months’ imprisonment for his breaking and entering convictions.
For his speeding to elude arrest convictions, the sentencing
court found mitigating facts and sentenced Barlow to two
consecutive sentences of four to fourteen months. Under North
Carolina’s structured sentencing scheme, given Barlow’s criminal
record, the maximum presumptive sentence for each of the four
crimes was nineteen months’ imprisonment. See N.C. Gen. Stat.
§ 15A-1340.17(c), (d) (2014).
Barlow maintained at sentencing that he had not previously
committed three violent felonies and so should not be sentenced
as a career criminal under the Armed Career Criminal Act
(“ACCA”). He also asserted that none of his prior state crimes
constituted felonies. The court permitted Barlow to pose the
second argument notwithstanding his guilty plea, concluding that
if the court accepted the argument, it would provide Barlow
grounds to withdraw the plea and obtain dismissal of the
indictment. 1
1The Government does not argue that Barlow waived this
argument by executing the plea agreement. While an
unconditional guilty plea conclusively establishes the elements
of an offense, United States v. Willis, 992 F.2d 489, 490 (4th
Cir. 1993), a defendant may withdraw his plea prior to
sentencing for a fair and just reason, which includes assertion
of a credible claim of legal innocence, United States v. Moore,
931 F.2d 245, 248 (4th Cir. 1991).
3
The district court carefully considered and rejected both
arguments. First, the court disagreed with Barlow’s contention
that that his prior state convictions were not felonies for
purposes of § 922(g)(1) because they did not expose him to a
term or imprisonment of more than one year. Second, the court
imposed the ACCA enhancement. In doing so, it counted Barlow’s
two convictions for speeding to elude arrest as separate violent
felonies, but consolidated his two convictions of breaking and
entering into a single violent felony after finding that they
arose out of the same criminal episode. The court also
indicated that a juvenile adjudication of delinquency for
discharging a weapon into occupied property under N.C. Gen.
Stat. § 14-34.1 (2014) could qualify as an additional violent
felony for purposes of the ACCA. As a result, the court found
at least the requisite three violent felonies necessary for the
ACCA enhancement and sentenced Barlow to the mandatory minimum
of 180 months’ imprisonment. Barlow timely filed this appeal.
II.
The less complex of Barlow’s appellate arguments involves
his two North Carolina felony speeding to elude arrest
convictions. He maintains that these offenses do not constitute
violent felonies under the ACCA.
4
The ACCA provides for a sentencing enhancement for persons
who violate § 922(g) and have three previous convictions for
violent felonies. See 18 U.S.C. 924(e). The North Carolina
crime of speeding to elude arrest does not have an element of
use, attempted use, or threatened use of physical force against
the person of another. Compare 18 U.S.C. § 924(e)(2)(B)(i),
with N.C. Gen. Stat. § 20-141.5(b). Nor is it among the listed
violent felonies in the ACCA -- burglary, arson, extortion, or a
crime involving the use of explosives. See 18 U.S.C.
§ 924(e)(2)(B)(ii). Therefore, to constitute a crime of
violence for purposes of the ACCA, the district court must have
found that this offense qualified under the residual “otherwise”
clause, which defines a violent felony as any crime that
“otherwise involves conduct that presents a serious potential
risk of physical injury to another.” Id.
After Barlow’s sentencing, the Supreme Court issued its
opinion in Johnson v. United States, 576 U.S. ___, 135 S. Ct.
2551 (2015). There the Court invalidated the ACCA’s “residual
clause” as unconstitutionally vague. Id. at 2557, 2563. The
Government concedes that, in light of Johnson, “Barlow’s two
North Carolina state convictions for Felony Speeding to Elude
Arrest no longer constitute valid ACCA predicates.” Appellee’s
Suppl. Br. at 4. As “Barlow now has at most two valid ACCA
predicate convictions,” his “fifteen-year sentence imposed
5
pursuant to the ACCA is no longer valid.” Id. (footnote
omitted). 2 We agree. Accordingly, we must remand this case for
resentencing.
III.
Barlow’s remaining argument poses a more complicated and
more comprehensive challenge. He contends that none of his
prior North Carolina convictions constitute felonies and thus he
could not be a felon in possession of a firearm under
§ 922(g)(1). This is so, he maintains, because state law
requires his release on post-release supervision nine months
prior to the expiration of his maximum sentence, and so none of
those convictions exposed him to a term of imprisonment of more
than one year.
The North Carolina Structured Sentencing Act determines the
length of the term of imprisonment Barlow faced. In United
States v. Simmons, 649 F.3d 237, 240, 249-50 (4th Cir. 2011) (en
banc), we held that the Structured Sentencing Act establishes a
“carefully crafted sentencing scheme” in which two factors
2 The Government also recognizes that, after Barlow’s
sentencing, this court held that the North Carolina felony of
discharging a firearm into an occupied building is not a “crime
of violence” under U.S.S.G. § 2L1.2 because it “does not require
that an offender use, attempt to use, or threaten to use force
against another person.” United States v. Parral-Dominguez, 794
F.3d 440, 445 (4th Cir. 2015) (emphasis omitted).
6
determine the length of felony sentences: the designated “class
of offense” and the offender’s own criminal record. After
ascertaining a defendant’s class of offense and “prior record
level,” a sentencing judge identifies from statutory tables the
minimum and maximum terms of imprisonment. See N.C. Gen. Stat.
§ 15A-1340.17(c), (d). Thus, as we held in Simmons, in this way
the Structured Sentencing Act and its statutory tables determine
if a crime is punishable by a term of imprisonment of more than
one year.
After issuance of our August 17, 2011 opinion in Simmons,
the North Carolina legislature enacted the Justice Reinvestment
Act, effective December 1, 2011 and so controlling here. That
legislation made a number of significant changes to the state’s
structured sentencing regime, including reforms to probation,
sentencing for habitual felons, and the proper place of
confinement for misdemeanants. See generally Justice
Reinvestment Act of 2011, 2011 N.C. Sess. Laws 192; Jamie
Markham, The Justice Reinvestment Act: An Overview, N.C. Crim.
L. (June 30, 2011), http://nccriminallaw.sog.unc.edu/the-
justice-reinvestment-act-an-overview/.
Most relevant here, the Justice Reinvestment Act mandates
terms of post-release supervision for all convicted felons
except those serving sentences of life without parole. See 2011
N.C. Sess. Laws 192 § 2.(a), (b). Prior to enactment of the
7
Justice Reinvestment Act, serious Class B1 through E felons
serving terms less than imprisonment for life received post-
release supervision beginning nine months prior to the
expiration of their maximum sentences. See id. The new statute
lengthens the term of post-release supervision for those serious
felonies to twelve months and introduces a new nine-month period
of mandatory post-release supervision for all other felonies,
including Barlow’s. See id.
When mandating these new terms of post-release supervision
in the Justice Reinvestment Act, the legislature also amended
the statutory tables in the Structured Sentencing Act. See id.
§ 2.(e), (f). In accord with the amended statutory tables, the
lowest possible maximum term of imprisonment for a felony
conviction in North Carolina, regardless of offense class or
prior record level, is thirteen months. See id. § 2.(e); N.C.
Gen. Stat. § 15A-1340.17(d), (e). 3 Thus, all North Carolina
felonies now qualify as federal predicate felonies; those crimes
that the state labeled as “felonies,” but which previously did
not expose a defendant to a term of imprisonment of more than
one year, have been eliminated.
3 In their altered form, the statutory tables refer only to
a “maximum term of imprisonment.” N.C. Gen. Stat. § 15A-
1340.17(d), (e). They are silent on what proportion of that
term a prisoner will spend in prison or under alternative forms
of state custody, and do not mention post-release supervision at
all. See id.
8
For example, given Barlow’s offense class (H) and prior
record level (II), the maximum term of imprisonment he would
have faced on each conviction prior to the new legislation was
ten months. See N.C. Gen. Stat. § 15A-1340.17(c), (d) (2010).
After the Justice Reinvestment Act, that period increased to
nineteen months and rendered an offense that would not have
qualified as a predicate felony under Simmons as one that does.
See 2011 N.C. Sess. Laws 192 § 2.(e).
Understandably, Barlow resists this conclusion. He insists
that “post-release supervision is supervision and not a term of
imprisonment.” Appellant’s Br. at 18 (emphasis in original).
He maintains that his state convictions exposed him to a term of
imprisonment of not more than ten months, followed by nine
months of post-release supervision.
The North Carolina legislature, however, has expressly
rejected that view. State law defines post-release supervision
as “[t]he time for which a sentenced prisoner is released from
prison before the termination of his maximum prison term.” N.C.
Gen. Stat. § 15A-1368(a)(1) (emphasis added). The “sentence or
sentences” imposed do not terminate until “a supervisee
completes the period of post-release supervision.” Id. § 15A-
1368.2(f). State law accordingly places time spent on post-
release supervision within, not outside of or in addition to,
the maximum term of imprisonment.
9
Of course, the North Carolina legislature could have
followed Barlow’s preferred route by retaining the maximum term
of imprisonment and requiring a nine-month period of post-
release supervision follow that term of imprisonment. But it
did not do this. The deliberateness of the legislature’s choice
not to do so seems crystal clear. For when it enacted the
Justice Reinvestment Act, a well-established model -- federal
supervised release -- did precisely what Barlow would like the
North Carolina legislature to have done.
Under federal law, a court “may include as a part of [a]
sentence a requirement that [a] defendant be placed on a term of
supervised release after imprisonment.” 18 U.S.C. § 3583(a)
(2012) (emphasis added). Thus, a federal judge can only impose
supervised release in addition to, and subsequent to, a term of
imprisonment. See id. 4 Similarly, the United States Sentencing
Guidelines provide that “a term of supervised release does not
replace a portion of the sentence of imprisonment, but rather is
an order of supervision in addition to any term of imprisonment
imposed by the court.” U.S. Sentencing Guidelines Manual ch.7,
4Even federal criminal statutes that set mandatory terms of
supervisory release explicitly separate the imprisonment term
from supervised release. See, e.g., 21 U.S.C. § 841(b)(1)(B)
(2012) (providing that sentences under this subparagraph shall
“include a term of supervised release of at least 4 years in
addition to such term of imprisonment” and doubling the duration
of supervision to 8 years if the defendant has a prior
conviction) (emphasis added).
10
pt. A(2)(b) (U.S. Sentencing Comm’n 2015); accord United States
v. Granderson, 511 U.S. 39, 50 (1994) (“Supervised release, in
contrast to probation, is not a punishment in lieu of
incarceration.”). In short, time spent on federal supervised
release unambiguously does not constitute part of the term of
imprisonment.
The North Carolina legislature did not follow the federal
model. Accordingly, notwithstanding similarities in terminology
and purpose between post-release supervision in North Carolina
and federal supervised release, the two programs differ in a
very important way: only North Carolina law includes the
supervision in the term of imprisonment. A comparison of
federal and North Carolina criminal judgments reflects this
distinction. A typical federal criminal judgment orders a term
of imprisonment, followed by a term of supervised release, which
is not included in the term of imprisonment. In contrast, a
North Carolina judgment for even the least serious felony, like
breaking and entering, orders the felon imprisoned for a maximum
term of months, with no mention of post-release supervision.
To be sure, persons serving felony sentences in North
Carolina typically do not spend the last nine months (or twelve
months for Class B1 through E felonies) of their sentences in
prison. But some will, and the fact that post-release
supervision is part of the term of imprisonment has significant
11
consequences for these offenders. Supervisees who abscond from
supervision or who commit an additional crime while on release
“will be returned to prison up to the time remaining on their
maximum imposed terms.” N.C. Gen. Stat. § 15A-1368.3(c)(1)
(emphasis added). Once again, the statutory language renders
post-release supervision part of the total term of imprisonment.
This provision makes clear that those on post-release
supervision are still serving their terms of imprisonment. And
if a supervisee absconds and is captured, he will serve his
remaining term of imprisonment in prison.
Despite this, Barlow argues that this period of
reimprisonment is irrelevant under Simmons because it results
from “some second, post-offense and post-imprisonment act.”
Appellant’s Br. at 18. This argument ignores not only the above
statutory provisions but also the fact that North Carolina
courts have expressly held that when a supervisee violates a
condition of post-release supervision and returns to prison,
that period of imprisonment is part of the original sentence,
not punishment for the supervision infraction. See State v.
Sparks, 657 S.E.2d 655, 661 (N.C. 2008) (“[R]evocation of
defendant’s post-release [supervision] and reinstatement of the
time remaining on his original sentence result from defendant’s
original felony convictions and not from his conduct which
triggered the revocation, absconding from his post-release
12
officer.”); State v. Corkum, 735 S.E.2d 420, 423 (N.C. Ct. App.
2012) (“There is no new sentence imposed as a result of a
revocation of post-release supervision; only the remaining
portion of the original sentence is activated.”). 5
The purely administrative nature of revocation of post-
release supervision in North Carolina echoes the state’s
treatment of post-release supervision as part of the term of
imprisonment. The Post-Release Supervision and Parole
Commission (“the Commission”), an administrative entity
operating under the state’s Division of Adult Correction,
oversees the revocation of post-release supervision after an
infraction. N.C. Gen. Stat. §§ 15A-1368(a)(3), (b); 143B-720.
The Commission conducts preliminary revocation hearings in which
a supervisee may appear and speak on his own behalf, but rules
of evidence do not apply. Id. § 15A-1368.6(d).
5 Barlow also argues that the manner in which state law
accounts for consecutive sentences establishes that post-release
supervision is not part of the term of imprisonment. See N.C.
Gen. Stat. § 15A-1354(b) (providing that a defendant convicted
of consecutive felony sentences receives a combined maximum term
equal to “the total of the maximum terms of the consecutive
sentences . . . less nine months for each of the second and
subsequent sentences imposed”). The legislative choice to
excuse all but one period of post-release supervision for
convicted felons serving consecutive sentences may seem
anomalous, but surely it is a choice the legislature could make.
That choice does not repeal other state statutes or somehow
demonstrate that, notwithstanding them, post-release supervision
does not constitute part of the term of imprisonment. It also
does not impact whether each crime individually is punishable by
more than one year’s imprisonment.
13
If a hearing officer finds probable cause to believe a
supervisee violated a condition of post-release supervision, he
may order the supervisee to “serve the appropriate term of
imprisonment,” subject to a final revocation hearing to be
conducted “within 45 days of the supervisee’s reconfinement.”
Id. § 15A-1368.6(d), (e). Thus, a supervisee arrested for a
violation may be re-confined in prison before the administrative
agency makes a final determination of whether a violation
occurred. This occurs without a return to the sentencing court
and may occur without a ruling from a judge. See id. § 15A-
1368.6(c) (providing that hearing officers need not be judicial
officials). This, of course, contrasts with federal supervised
release, where the sentencing court maintains jurisdiction over
supervisees and resentences defendants to terms of
reimprisonment for violations. See 18 U.S.C. § 3583(e)(3).
In sum, the North Carolina legislature clearly intended to
include post-release supervision as part of a felon’s term of
imprisonment. And under Simmons we ask only what term of
imprisonment the defendant was exposed to for his conviction,
not the most likely duration of his imprisonment. See United
States v. Kerr, 737 F.3d 33, 38 (4th Cir. 2013); see also
Simmons, 649 F.3d at 248-50. In every case, North Carolina law
now exposes felons to terms of imprisonment exceeding one year.
Of course, those felony sentences include a period of post-
14
release supervision. But state law renders post-release
supervision part of the term of imprisonment. Therefore, each
of Barlow’s convictions, for which he faced a nineteen-month
term of imprisonment, qualifies as a prior felony conviction
under 18 U.S.C. § 922(g)(1).
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED FOR RESENTENCING.
15