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Resentencing required as priors are no longer ACCA predicates

The defendant’s 220-month sentence was based on four prior convictions that rendered him an “armed career criminal.” Now, however, two of those prior convictions no longer qualify as violent felonies, thus requiring resentencing.


Randall Cornette pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) pursuant to a written plea agreement with an appeal waiver. Under 18 U.S.C. § 924(a)(2), this conviction carries a maximum prison sentence of 10 years. However, the presentence report designated the following predicate “violent felony” convictions under the Armed Criminal Career Act, or ACCA: (1) a 1976 Georgia felony burglary; (2) a 1979 North Carolina breaking-and-entering; (3) a 1986 North Carolina felony possession with intent to manufacture/sell/deliver schedule II controlled substance and felony sell/deliver schedule II controlled substance and (4) a 1989 North Carolina felony breaking and entering. Based on these convictions, the district court determined that Cornette was an armed career criminal under the ACCA and sentenced him to 220 months of imprisonment.

In 2012, Cornette filed his first motion under 28 U.S.C. § 2255 alleging ineffective assistance of counsel. The district court denied Cornette’s motion and denied a certificate of appealability. After the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), Cornette filed a § 2255 motion, arguing that he no longer qualified as an armed career criminal under Johnson. The district court denied Cornette’s motion. This appeal followed.


The government contends that the record does not establish that Cornette was sentenced under the residual clause. But under United States v. Winston, 850 F.3d 677 (4th Cir. 2017), we are to read this equivocation in the record in Cornette’s favor. Since it is not clear one way or the other, we assume for purposes of this appeal that Cornette was sentenced under the ACCA’s residual clause.

Cornette’s plea agreement waived his right to appeal from errors in the sentence imposed against him, except for claims of ineffective assistance of counsel and prosecutorial misconduct. Cornette concedes that the claim he presses here is neither an ineffective assistance of counsel nor a prosecutorial misconduct claim. But Cornette contends that his otherwise valid appeal waiver does not bar him from now arguing that by imposing a sentence under the now unconstitutional residual clause of the ACCA, the district court exceeded its statutory authority to sentence him. Cornette’s argument finds support in the precedent of this court.

To be clear, this does not mean that a subsequent change in sentencing law renders an otherwise valid appeal waiver invalid. Our own precedent establishes that when a sentencing law undergoes a non-retroactive change, a defendant who waived his right to appeal a sentence imposed under the old regime remains bound by that waiver even if resentencing under the new regime might otherwise entitle him to new rights or subject him to different penalties.

Here, however, because the residual clause was struck from the ACCA in Johnson and the Supreme Court determined in Welch v. United States, 136 S.Ct. 1257 (2016), that Johnson announced a substantive rule that applied retroactively, the district court is now deemed to have had no statutory authority to impose Cornette’s sentence under the residual clause of the ACCA. Accordingly, we may review Cornette’s sentencing challenge notwithstanding the appeal waiver.

We turn now to the merits of Cornette’s ACCA arguments. We first determine that the Georgia burglary statute under which Cornette was convicted is indivisible, requiring application of the categorical approach. We next apply the categorical approach to determine whether Cornette’s conviction qualifies as an ACCA predicate.  We conclude that it does not.

Having determined that Cornette’s burglary conviction no longer qualifies as a violent felony, we move to whether Cornette’s 1984 North Carolina controlled substance convictions qualify as ACCA predicates. Cornette contends that in light of our decisions in United States v. Newbold, 791 F.3d 455 (4th Cir. 2015), and United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), these convictions no longer qualify as ACCA predicates. We agree. We therefore grant Cornette’s § 2255 petition and reverse and remand for resentencing, with instructions for the district court to resentence Cornette without the ACCA enhancement.

Reversed and remanded with instructions.

United States v. Cornette, Appeal No. 18-6041, July 30, 2019. 4th Cir. (Floyd), from WDNC at Asheville (Reidinger). Joshua B. Carpenter for Appellant, Anthony Joseph Enright for Appellee. VLW No. 019-2-218. 22 pp.

VLW 019-2-218

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