ACCA Sentence Vacated on § 2255 Motion

On remand from the U.S. Supreme Court, the 4th Circuit says a petitioner convicted as a felon in possession of a firearm may challenge on collateral review a Simmons sentencing error that resulted in his erroneous designation as an armed career criminal.

Petitioner pleaded guilty in 2005 to being a felon in possession of a firearm. At sentencing, the district court found he had three prior North Carolina state court convictions that triggered enhancements under the Armed Career Criminal Act, including a 15-year mandatory minimum prison term. Defendant objected that at least one of these convictions should not have been considered a predicate “serious drug offense” because it was not punishable by a term of 10 years in prison. On this basis, he continued to challenge his designation as an armed career criminal on direct appeal, by 28 U.S.C. § 2255 motion and by petition to the Supreme Court.

The Supreme Court granted the petition and vacated the 4th Circuit decision affirming denial of post-conviction relief. It remanded the case to us for consideration in light of Miller v. U.S., 735 F.3d 141 (4th Cir. 2013), which declared U.S. v. Simmons, 649 F.3d 237 (4th Cir. 2011), retroactively applicable on collateral review.

In the pre-Simmons era, we adhered to the now-defunct rule that petitioner’s prior convictions could be considered punishable by 10 years if the sentencing law allowed for the possibility of any defendant — such as a defendant with the worst possible criminal history — to be sentenced to 10 years’ imprisonment for the same crime, regardless of the maximum punishment applicable to the instant defendant.

Petitioner’s § 2255 motion exposes the sentence he received on the felon in possession count as an illegal one. On this count, the district court imposed 225 months, or 18.8 years. Had petitioner been convicted under 18 U.S.C. § 922(g) without three previous serious drug offenses, he would have faced a statutory maximum penalty of 10 years. Such circumstances, where a change in law reduces the defendant’s statutory maximum sentence below the imposed sentence, have long been cognizable on collateral review.

Turning to the merits of petitioner’s claim, an examination of North Carolina’s sentencing regime, as well as petitioner’s criminal history and the circumstances of his offense, shows that he should never have been sentenced as an armed career criminal. His alleged ACCA predicate was one of eight different offenses consolidated into two different judgments pursuant to an April 18, 1984 guilty plea. All told, petitioner pleaded guilty to eight offenses in exchange for a 17-year sentence, even though the presumptive terms for each of the individual eight offenses added up to 19 years. The alleged federal predicate was a possession with intent to sell and deliver a controlled substance offense (the PWID offense), which carried a presumptive term of three years and a maximum aggravated penalty of 10 years.

The controlling inquiry is not what sentence petitioner actually received for the individual PWID offense within the larger, consolidated judgment. Instead, we must determine the maximum penalty that petitioner potentially faced given his particular offense and his particular criminal history. Petitioner has conclusively demonstrated that there is nothing in the record supporting the government’s contention that his PWID offense was punishable by 10 years.

Petitioner does not possess the requisite, predicate “serious drug offenses” making him an armed career criminal.

We deny the government’s motion to remand the case to the district court and vacate petitioner’s sentence and remand for further proceedings.

U.S. v. Newbold (Gregory) No. 10-6929, June 30, 2015; USDC at Greensboro, N.C. (Schroeder) Ashley N. Waring for appellant; Michael F. Joseph, AUSA, for appellee. VLW 015-2-113, 22 pp.