Criminal Practice – Same Sentence Would Apply, Without ACCA

U.S. v. McDonald (Lawyers Weekly No. 001-065-17, 10 pp.) (Traxler, J.) No. 15-4682, March 9, 2017; USDC at Charlotte, N.C. (Conrad, J.) 4th Cir.

Holding: The 4th Circuit affirms a 188-month sentence for a defendant who pleaded guilty to four counts of possession of a firearm and ammunition by a convicted felon, based on his status as an armed career criminal; because the district court made it clear that it would have given defendant the same sentence if the ACCA did not apply, and that sentence is substantively reasonable, any alleged guidelines calculation error was harmless.

Second-Degree Burglary

At sentencing, defendant objected to his classification under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), arguing that second-degree burglary under South Carolina law should not be considered a “violent felony” for ACCA purposes because some sort of future decision from the 4th Circuit might impact the case. The district court reasoned that then-controlling 4th Circuit law established that South Carolina second-degree burglary falls within the ACCA’s list of prior offenses. The district court said that shorter sentences had not deterred defendant from committing the same crime numerous times. It also noted that the 188-month sentence took into consideration defendant’s “difficult childhood,” his mental state and “the heartfelt sentiments” of defendant’s sister.

On appeal, defendant argues that the district court erroneously sentenced him under the ACCA. He contends his sentence should be vacated because the district court erred in applying the ACCA to him.

We assume that defendant does not qualify as a “violent felon” under the ACCA and evaluate whether, absent application of the ACCA, the district court would have reached the same result and whether the result is reasonable.

The record makes clear that the district court would have given defendant the same sentence absent application of the ACCA. The district court noted that, had it not applied the ACCA, it would have arrived at the same 188-month sentence because it would have given defendant an above-guidelines sentence through an upward variance in his criminal history category.

The district court expressly stated what upward departure or variance it would have used to achieve the same 188-month result. The district court’s alternate sentence is more thorough than other alternative sentences we have affirmed under the assumed harmless error review. In this case, the district court actually gave a comprehensive explanation of the basis for the parallel result.