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Criminal Practice – Sentence Enhancement Upheld in Gun Case

U.S. v. Kerr (Lawyers Weekly No. 13-01-1197, 31 pp.) (Diaz, J.) No. 12-4775, Dec. 3, 2013; USDC at Greensboro, N.C. (Tilley, J.) 4th Cir.

Holding: The 4th Circuit affirms defendant’s 268-month prison sentence on a conviction of possession of a firearm as a felon, enhanced under the Armed Career Criminal Act.

Defendant raises three issues on appeal. First, he contends 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.

Following our decision in U.S. v. Simmons, 649 F. 3rd 237 (4th Cir. 2011), 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. This 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 defendant received a mitigated sentence of less than one year in prison under North Carolina law for those felonies?

Because the maximum possible prison sentence defendant faced for his prior state convictions exceeded one year, and because that potential punishment was far from hypothetical, we hold defendant’s prior state convictions qualify as predicate felonies for sentencing under the ACCA. This holding remains faithful to our directive in Simmons requiring that sentencing courts examine the offense class, the offender’s prior record level and the applicability of the aggravated sentencing range. The district court here properly considered these three elements and therefore did not err in sentencing defendant as an armed career criminal.

Next, defendant argues the same reasoning precludes his conviction under 18 U.S.C. § 922(g)(1), which similarly requires a predicate felony offense. Again, defendant faced a presumptive maximum sentenced of 14 months’ imprisonment for his state convictions. Therefore, he has the requisite predicate felony for his § 922(g)(1) conviction. The district court did not err in denying defendant’s motion to vacate his conviction and dismiss the indictment.

Finally, defendant asserts 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 defendant’s first two arguments and find the third one is moot. We therefore affirm the district court.

Judgment affirmed.


Davis, J.: The majority opinion runs counter to Supreme Court precedent, Carachuri-Rosendo v. Holder, 139 S. Ct. 27 (2010), and effectively guts our circuit precedent in Simmons. 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 22-year sentence imposed on a 51-year-old mentally ill veteran who had previously never served more than 10 months in prison, tagging him with the moniker “armed career criminal.” We can do much better than this.

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 the federal district judges in these cases: to decide who should be treated as a repeat offender responsible for a disproportionately large percentage of federal crimes, i.e., an armed career criminal. We should exercise judicial restraint by holding 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.


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