PUBLISHEDUNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT

No. 12-4775

UNITED STATES OF AMERICA,
Plaintiff – Appellee,v.
NORMAN ALAN KERR,
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. (1:09-cr-00290-NCT-1)

Argued:September 19, 2013

Decided:December 3, 2013

Before AGEE, DAVIS, and DIAZ, Circuit Judges.

Affirmed by published opinion.
opinion, in which Judge Agee
dissenting opinion.

Judge Diaz wrote the majority
joined.
Judge Davis wrote a

ARGUED: George Entwistle Crump, III, Rockingham, North Carolina,
for Appellant. Ripley Eagles Rand, OFFICE OF THE UNITED STATESATTORNEY, Greensboro, North Carolina, for Appellee.
ON BRIEF:
Robert A. J. Lang, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina; Tammy
Chen Hsu, Second Year Law Student, WAKE FOREST UNIVERSITY SCHOOLOF LAW, Winston-Salem, North Carolina, for Appellee.

DIAZ, Circuit Judge:Ajury

convicted

Norman

Alan

Kerr

of

possessionofafirearm after being previously convicted of a crime punishable
by imprisonment for a term exceeding one year, in violation of
18 U.S.C. § 922(g)(1).

The district court determined that Kerr

qualified as an armed career criminal under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C § 924(e), and sentenced him to268 months’ imprisonment.
Kerr

raisesthreeissuesin

thisappeal.

First,

hecontends that his prior North Carolina state convictions do not
qualifyaspredicatefelonies

forsentencing

under

the

ACCA

because he was sentenced in the mitigated range--as opposed tothepresumptive

Structured

range--of

Sentencing

Act.

punishment
Second,

under
he

North

arguesCarolina’s

that

the

same

reasoning precludes his § 922(g)(1) conviction, which similarly
requires a predicate felony offense.
hiscounselinhis

initialFinally, Kerr asserts thatappealrenderedineffective

assistance by failing to challenge his conviction on the basisthat he lacked a predicate felony.

We disagree with Kerr’s

first two arguments and find that the third one is moot.
therefore affirm the district court’s judgment.

2

We

I.
Kerr was charged with one count of possession of a firearmby a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1),924(e).
ACCA,

The indictment alleged that, for the purposes of the
Kerr

had

previously

beenconvicted

of

three

violent

felonies or serious drug offenses punishable by imprisonment fora term greater than one year.
had

three

2008

North

The record establishes that Kerr

Carolina

state

convictionsforfelonybreaking and entering. 1
Following a jury trial, Kerr was convicted of possession ofa firearm by a convicted felon.

At his sentencing hearing, Kerr

objected to his designation as an armed career criminal under§ 924(e), which required that Kerr have a combination of threeconvictions for violent felonies or serious drug offenses.

The

district court overruled the objection, relying on then-binding
precedent that a North Carolina state conviction constitutes acrime punishable by a term of imprisonment exceeding one year
“if

any

defendantcharged

with

that

crime

could

receiveasentence of more than one year,” United States v. Harp, 406 F.3d
242, 246 (4th Cir. 2005), overruled by United States v. Simmons,
1

The indictment also alleges that Kerr had been convictedof other crimes that were punishable by imprisonment for a term
exceeding one year. The government concedes, and we agree, that
Kerr could not have received a sentence in excess of one year
for those offenses.

3649 F.3d 237 (4th Cir. 2011) (en banc).

As a result, the court

sentenced Kerr under the ACCA to 268 months’ imprisonment.
Kerr appealed, arguing that the district court erred indenying his motion to substitute counsel and in sentencing him
under the ACCA.
decisionon

We placed the appeal in abeyance pending ourrehearinginSimmons.

Our

en

banc

opinionin

Simmons overruled Harp and held that a North Carolina conviction
is a crime punishable by a term of imprisonment exceeding one
year only if the particular defendant is eligible for such asentence,

takingintonature of his offense.
We

subsequently

accounthis

criminal

history

andthedenialof

See 649 F.3d at 247 & n.9.
affirmedthedistrict

court's

Kerr's motion to substitute counsel and vacated Kerr’s sentence
becauseHarp

sentencing,

was

we

no

longerexpressednogoodopinion

law.

With

regardingrespect

whethertoKerr’sprior state convictions qualified as predicate felonies.
On remand, Kerr’s counsel filed a motion asking the court
to vacate Kerr’s conviction and dismiss the indictment.

Prior

to resentencing, the probation officer prepared a supplement to
the original presentence investigation report, concluding that
Kerr’s 2008 state breaking and entering convictions were eachpunishablebyimprisonmentaandpresumptivethusmaximum

qualified

assentence
ACCA

of

14

predicates.

months’The

district court denied counsel’s motion to vacate and dismiss.
4Agreeing

that

the

prior

breaking

andentering

convictions

qualified as ACCA-predicate crimes, the court again sentenced
Kerr to 268 months’ imprisonment.

This appeal followed.

II.
A.
We review de novo the question of whether a prior stateconviction is a predicate felony for the purposes of federal
criminal law.
(4th Cir. 2012).

See United States v. Jones, 667 F.3d 477, 482
In order for a defendant to be sentenced as anarmed career criminal on a felon-in-possession conviction, thedefendant

must

have

a

combination

of

three

violent felonies or serious drug offenses.

convictions

for

18 U.S.C. § 924(e).

A violent felony is a crime of violence punishable by a term
exceeding one year of imprisonment.

18 U.S.C. § 924(e)(2)(B).

B.
To properly analyze Kerr’s arguments, we must first review
his 2008 state convictions under the sentencing regime mandatedby North Carolina’s statutory framework.
North Carolina’s Structured Sentencing Act directs a judge
to impose felony sentences based on two criteria: the designatedoffense class and the offender’s prior record level.

N.C. Gen.

Stat.

cases

§ 15A-1340.13(b).

The

Act,

or

in

certaindifferent statute, sets forth the offense class.
5aId. § 15A-

1340.17(a).

Thesentencing

judge

calculates

theoffender’s

prior record level by adding the points assigned to each of theoffender’s prior convictions.

Id. § 15A-1340.14(a)-(b).

Next, the judge matches the offense class and prior record
level using a statutory table, which provides three sentencing
ranges--a

mitigated

aggravatedrange.

range,

andan

default,thejudge sentences the defendant within the presumptive range.

The

Id.

a

presumptive§ 15A-1340.17(c).

Asrange,ajudge may deviate from the presumptive range, however, if the
judge

makes

writtenfindings

ofaggravatingor

mitigating

factors established by the Act, finds that aggravating factors
outweighmitigating

factors(or

vice

depart from the presumptive range. 2

versa),

andchoosestoId. §§ 15A-1340.13(e), 15A-

1340.16(b), (c).
Afteridentifying

theapplicablesentencing

range,

thejudge must select the defendant’s minimum sentence from within

2With respect to the aggravated sentencing range, a judge
may depart only if the state has provided the defendant withwritten notice of its intent to prove the necessary aggravating
factors at least 30 days before the trial or entry of a plea.
Id. § 15A-1340.16(a6).
Moreover, with two exceptions, a jury
must have found aggravating factors exist beyond a reasonable
doubt or the defendant must have pleaded to the existence of
those factors. See id. §§ 15A-1340.16(a)-(a1), (b).
Withrespect to the mitigated sentencing range, the defendant bears
the burden of proving any mitigating factors by a preponderanceof the evidence. Id. § 15A-1340.16(a).

6that range. 3
minimumId. § 15A-1340.17(c).

sentence,

separate

Once the judge selects thestatutory

corresponding maximum sentence.

chartsprovidetheId. § 15A-1340.17(d)-(e).
C.

We

turn

now

to

Kerr’s

three

2008

breaking

convictions, which constituted Class H felonies.

andentering

At the time ofsentencing for those state convictions, Kerr had a prior record
level of IV.

Pursuant to the statutory charts, he thus faced apresumptive minimum term of 9 to 11 months' imprisonment and acorresponding

presumptive

maximum

sentenceof

14months’imprisonment. 4
The state sentencing judge found, however, that the factors
inmitigation

outweighed

those

mitigated sentence was justified.

inaggravation

and

that

a

The judge then exercised her

discretion to depart from the presumptive range and sentenced
Kerr in the mitigated range.

The mitigated range included apossibleofmaximum

sentence

11

months’imprisonment.

3

In rare cases where the judge finds “extraordinary
mitigating factors,” the judge may impose a lesser sentence.
Id. § 15A-1340.13(g).
The judge does not have discretion to
impose a more severe sentence, however, even in extraordinary
cases. Simmons, 649 F.3d at 240 n.2.
4

After Kerr was sentenced for the three 2008 breaking andentering convictions, the Act’s statutory charts were amended toincrease the maximum sentences. See Justice Reinvestment Act of2011, 2011 N.C. Sess. Laws 192 §§ 2(e)-(f).

7Ultimately,

the

judge

sentenced

Kerr

to

8

to

10

months’imprisonment.

III.
A.
Kerr contends that because the state court judge chose to
sentence him in the mitigated range, he could not have beensentenced to a term of imprisonment for greater than one year
for any of his three 2008 breaking and entering convictions. 5

Asa result, Kerr contends that he lacks the requisite predicate
felonies for sentencing as an armed career criminal under thiscourt’s reasoning in Simmons.
Simmons did not, however, decide the precise issue beforeus.

Rather, we considered there whether a prior North Carolina

stateconvictionformarijuana

possession,

for

which

the

defendant faced no possibility of imprisonment, constituted an
offensepunishablebyimprisonment

for

more

than

one

year,

thereby triggering a sentencing enhancement under the Controlled
Substances Act.

Simmons, 649 F.3d at 239.

A panel of thiscourt originally affirmed Simmons’s sentence in an unpublisheddisposition, but the Supreme Court vacated that judgment and5

Kerr does not contest that these convictions were forcrimes of violence.

8

remanded

the

case

for

furtherconsideration

in

light

Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010).

ofSimmons,

649 F.3d at 239.
In Carachuri-Rosendo, the question presented was whether alawful permanent resident of the United States was barred fromseeking

cancellation

Nationality

Act

(the

of

removal“INA”)

underbecausehetheImmigration

and

had

previously

beenconvicted of an aggravated felony.

130 S. Ct. at 2580.

Court

an

explained,

the

INA

defined“aggravatedAs thefelony”

toinclude any crime “punishable as a federal felony” under theControlled Substances Act--i.e., a crime for which the “maximum
term of imprisonment authorized” exceeds one year.

Id. at 2581

(internal quotation marks omitted).
Carachuri-Rosendo

hadpreviously

beenconvicted

misdemeanor drug possession offenses in Texas.
Thegovernment

arguednonetheless

that

of

two

Id. at 2580.

Carachuri-Rosendo

hadbeen convicted of an aggravated felony because he hypothetically
could

have

receivedatwo-yearsentencefor

his

secondmisdemeanor offense if he had been prosecuted in federal court.
Id. at 2582.

This was true because a defendant may receive a

two-year maximum sentence under federal law for possession of
narcotics if the defendant has a prior drug conviction.
2581.

9

Id. at

The

Court,

however,

rejected

thishypothetical

approach,reasoning that the statutory text “indicates that we are to lookto the conviction itself as our starting place, not to whatmight have or could have been charged.”
Carachuri-Rosendo's

secondstate

Id. at 2586.

conviction,theExamining

Court

noted

that he was convicted of a misdemeanor simple drug possession
offensewithoutanyfindingofrecidivism.

Id.

The

maximum

prison sentence authorized for such a conviction was one year.
Id. at 2581 n.4.

Therefore, the Court held that the petitioner

was “not actually convicted” of an offense punishable by a termof imprisonment exceeding one year.

Id. at 2586-87 (internal

quotation marks omitted).
We subsequently determined that Carachuri-Rosendo required
us to vacate Simmons’s sentence.
we

explained

earlierthatdecision

Specifically,

we

Carachuri-Rosendo
in

Harp.

enhancement

Substances

Act,

was

districtdirectly

Simmons,

determined

sentencinga

In reaching this conclusion,

that

in

649

undermined

our

F.3d

246.

at

deciding

whether

appropriate

underControlled

court

no

could

the

longer

look

to

a

a

hypothetical defendant with the worst possible criminal history.
Instead, we held that a sentencing court may only consider the
maximum possible sentence that the particular defendant could
have received.

See id. at 247 & n.9.

Conducting that analysis,

we explained, “requires examination of three pieces of evidence:10

the offense class, the offender’s prior record level, and theapplicability of the aggravated sentencing range.”

Id. at 247

n.9.
Applying that analysis, we first found that Simmons wasconvicted of a Class I felony and had a prior record level of I.
Id. at 240-41.

We explained that[u]nder the Act, a Class I felony is punishable by asentence exceeding twelve months' imprisonment only
if the State satisfies two conditions.
First, theState must prove (or the defendant must plead to)the existence of aggravating factors sufficient towarrant the imposition of an aggravated sentence.
Second,
the
State
must
demonstratethat
thedefendant
possesses fourteenormorecriminal
history points, resulting in a "prior record level"of at least 5. If the State fails to satisfy eitherof these conditions, a Class I offender can neverreceive more than one year's imprisonment.
Id. (internal citations omitted).
neitherNorth

condition,

Carolina

at

241,

we

conviction

could

not

federal sentence,
Following
defendants’

our

id.

Because the State satisfied
held
be

that

Simmons’s

used

to

prior

enhancehis

see id. at 244.
decisionarguments

that

in

they

Simmons,
lack

the

we

have

rejectedrequisite

predicatefelonies because the actual sentence they received under North
Carolina law was less than a year of imprisonment.

See, e.g.,

United States v. Edmonds, 679 F.3d 169, 176 (4th Cir.), vacatedon other grounds, 133 S. Ct. 376 (2012); United States v. Leach,
446

F.

App’x

625,

626

(4th

Cir.

11

2011)

(unpublished).

InEdmonds,forexample,thedefendant

arguedthathelackedapredicate felony offense because he actually received a sentenceof 9 to 11 months’ imprisonment. 6

679 F.3d at 176.

Edmonds hada prior record level of IV, the offense was a Class H felony,
and there was no showing of aggravating factors.
Structured

Sentencing

Act,

he

faced

sentence of 14 months’ imprisonment.

aId.

maximum

Under thepresumptive

Id.

We concluded that Edmonds had a qualifying predicate felony
because he “could have received” a sentence greater than one
year.

Id. at 176-77.

We reached the same result in Leach.

See

446 F. App’x at 626 (“[W]hile Leach was only sentenced to nineto-eleven months, his offense was punishable by more than twelve
months, as the state court had the discretion to sentence Leachto a maximum sentence of eleven-to-fourteen months imprisonment
withoutanyfurtherfactualorlegalfindings.”).

In

both

cases, the defendant was exposed to a sentence in excess of one
year even though he actually received a sentence of less than
one year.

The maximum sentence the particular defendant faced--

notsentencetheactually

imposed--controlled

whetherthedefendant had a qualifying predicate felony.

6

Edmonds conceded that one of his prior convictions at
issue was a qualifying predicate felony. 679 F.3d at 176.

12

B.
Kerr’s appeal presents an issue that neither Simmons nor
itsprogeny

determining

expressly

address:Mustwhether

defendant

has

a

a

district

court,

intherequisite

predicatefelonies for sentencing as an armed career criminal, consider
the fact that the defendant received a mitigated sentence ofless than one year in prison under North Carolina law for thosefelonies?

To answer this question, we return to the Structured

Sentencing Act.
As explained above, North Carolina law establishes threesentencing ranges based on the appropriate offense class andprior

recordlevel.

N.C.

Gen.

Stat.

§ 15A-1340.17(c).

presumptive sentencing range is the default.

The

The sentencing

judge may deviate from the presumptive range if the judge makes
writtenfindings

ofaggravatingor

mitigating

factors,

findsthat aggravating factors outweigh mitigating factors (or viceversa),

andchoosestodepart.

Id.

§§ 15A-1340.13(e),1340.16(b), (c); see also Simmons, 649 F.3d at 240.

15A-

But North

Carolina law also provides that a judge may sentence a defendantin the presumptive range even if the judge finds that mitigating
factors outweigh those in aggravation.

State v. Bivens, 573

S.E.2d 259, 261-62 (N.C. Ct. App. 2002).
The state court judge who sentenced Kerr found that therelevant mitigating factors outweighed those in aggravation and13then chose to exercise her discretion by sentencing Kerr to a
mitigated range sentence of 8 to 10 months’ imprisonment for his
crimes.

But just as in Edmonds, the judge remained free at all

times to sentence Kerr to a presumptive prison term of up to 14
months.
We have great respect for our distinguished colleague indissent.

But in focusing--we think myopically--on the actual

sentence 7 that Kerr received after the state judge weighed therelevant factors in aggravation and mitigation, our friend seeks
to rewrite the teachings of Simmons and Edmonds.

We, however,are bound to apply the law as it exists, not as our colleague
would

like

sentence

it

that

to

be.

Kerr

Because

faced

for

the

maximum

his

prior

possiblestate

prisonconvictions

exceeded one year, and because that potential punishment was far
from hypothetical, 8 we hold that Kerr’s prior state convictions

7

The dissent says that it does not argue “for an assessmentof the defendant’s actual sentence” but rather “for anassessment of the defendant’s actual sentencing range.”Dis.
op. at 27 n.1.
In our view, however, this is a distinction
without a difference, as both are inconsistent with thereasoning of Simmons and Edmonds.
8

Our holding today is not, as the dissent paints it, “Harpredux,” nor is it parodoxical.
Harp summarily branded every
defendant facing an ACCA enhancement for his prior North
Carolina convictions as the worst possible offender under North
Carolina’s sentencing scheme.
While Simmons rejected that
hypothetical approach to federal sentencing, we subsequently
made clear “that the qualification of a prior conviction [as apredicate offense] does not depend on the sentence [a defendant](Continued)
14

qualify as predicate felonies for sentencing under the ACCA.
Ourholdingrequiringremainsthatfaithfulsentencing

tocourtsourdirective

examinein“threeSimmonspiecesofevidence: the offense class, the offender’s prior record level,
and the applicability of the aggravated sentencing range,” 649
F.3d at 247 n.9.

The district court properly considered thesethree elements and therefore did not err in sentencing Kerr as
an armed career criminal.

IV.
Kerr also contends that the district court erred in denying
his motion to vacate his § 922(g)(1) conviction and dismiss theindictment,

again

felony offense. 9

becausehelackedtherequisite

predicate

In order for a defendant to be convicted ofpossession of a firearm by a convicted felon, he must have beenpreviously

convicted

of

a

crime

imprisonment exceeding one year.

punishable

by

a

term

of

18 U.S.C. § 922(g)(1).

actually received but on the maximum sentence that he could havereceived for his conviction.”
Edmonds, 679 F.3d at 176.
Ourdecision today flows from a straightforward application of ourprecedent.
9

We asked the parties to brief whether the mandate rule
foreclosed the district court, on remand, from considering
Kerr’s challenge to his conviction. Both parties contend thatthe mandate rule does not foreclose this argument, and we agree.

15

As

we

maximum

havealready

explained,ofmonths’sentence

convictions.

14

Kerr

faced

imprisonmentaforpresumptive
his

state

Therefore, Kerr has the requisite predicate felony

for his § 922(g)(1) conviction.

We thus hold that the district

court

Kerr’s

did

not

err

in

denyingmotiontovacatehis

conviction and dismiss the indictment.

V.
Finally, we asked the parties to brief whether Kerr’s priorappellatecounsel

in

his

first

appealrenderedineffective

assistance because he failed to challenge Kerr’s conviction on
the basis that Kerr lacked a predicate felony.
When we remanded this case to the district court following
Kerr’sfirst

appeal,the

districtcourt

challenge to his conviction on the merits.

considered

Kerr’sAnd today we haveconcluded that Kerr is not actually innocent of his § 922(g)(1)conviction on the basis that he lacks a predicate felony.

As aresult, Kerr’s contention that his prior appellate counsel was
ineffective for failing to raise this very issue in his first
appeal is now moot.

16

VI.
For

the

reasons

given,

weaffirmthe

district

court’s

judgment.
AFFIRMED

17

DAVIS, Circuit Judge, dissenting:Respectfully, I dissent.
The

majority

opinionruns

countertoSupremeCourt

precedent, Carachuri-Rosendo v. Holder, 130 S. Ct. 27 (2010),
and effectively guts our Circuit precedent, United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). It violates
principles

ofcomityandfederalism

bydirectingfederaldistrict courts to ignore the careful sentencing decisions of
their state counterparts. And it goes to such lengths all toaffirm a twenty-two-year sentence imposed on a fifty-one-year
old mentally ill veteran who had previously never served morethan ten months in prison, tagging him with the moniker “armed
career criminal.”
The

Armed

We can do much better than this.
CareerCriminalActrequiresafifteen-year

minimum prison term for a defendant convicted of being a felon
in possession of a firearm if he had three previous convictions“for a violent felony or a serious drug offense.” 18 U.S.C. §§924(e)(1), 922(g). A “violent felony” is defined as, among otherthings,

“any

crime

punishablebyimprisonment

for

a

term

exceeding one year.” Id. § 924(e)(2)(B). The issue in this case
is: When a North Carolina state judge has made a finding thatmitigating factors are present and sufficient to outweigh any
aggravating

factors,

andthedefendant’s

mitigated

sentencing

range for a North Carolina conviction therefore does not exceed
18

one

year,

is

the

conviction

for

a

crime

“punishablebyimprisonment for a term exceeding one year”?
The answer is and should be no, but the majority answers
yes. It holds that federal courts should ignore the defendant’s
mitigated

range

of

imprisonment

asdetermined

by

the

North

Carolina judge, N.C. Gen. Stat. § 15A-1340.16(b), and instead
look to the sentence the state judge could have imposed had she
decided,hypothetically,toignoreherownfindingthat

mitigating circumstances justified a sentence in a range thatcannot exceed one year, ante, at 13. See N.C. Gen. Stat. § 15A1340.16(c).
The majority’s answer is fantasy. It inserts an Alice-inWonderland

analysis

into

what

shouldbeastraightforward

question of statutory construction. But most troubling about the
majority opinion is that it resurrects a speculative mode ofanalysis that we – on the foundation of unmistakable Supreme
Court authority – discarded in Simmons, 649 F.3d at 237. A bitof history illustrates why the majority opinion is déjà vu.
In United States v. Harp, 406 F.3d 242, 245-46 (4th Cir.
2005), we held that a North Carolina conviction for possession
with intent to distribute marijuana was, for purposes of the
career offender Guideline, U.S. Sentencing Guideline § 4B1.1(a),apredicate“controlled

substance

offense”“punishablebyimprisonment for a term exceeding one year.” Even though the19defendant’s maximum possible punishment was only twelve months,
we

held

that

the

properinquirywaswhetherahypotheticaldefendant with the worst possible criminal history “could” havereceived a sentence of over twelve months for committing thesame crime. Id. at 246. In other words, the key inquiry was:What was a possible outcome for a hypothetical defendant who
committed the same crime?
We rejected this speculative approach in Simmons, holding
that

“the

mere

possibility

that

[the

defendant’s]

conduct,

coupled with facts outside the record of conviction, could haveauthorized a conviction of crime punishable by more than one
year’s imprisonment cannot and does not demonstrate that [thedefendant] was actually convicted of such a crime.” 649 F.3d at
244-45 (quotations and citations omitted) (emphasis added). The
district

court

in

Simmons,

relying

on

Harp,

had

appliedtheControlled Substances Act sentencing enhancement; it found thatthe defendant’s prior North Carolina conviction for marijuana
possession – for which he faced no possibility of imprisonment –qualified as a felony drug offense “punishable by imprisonment
for more than one year,” 21 U.S.C. § 802(44). Id. at 240-41. We
vacated the defendant’s sentence and put an end to Harp. Id. at
241.
The primary basis for our decision was Carachuri-Rosendo,
130 S. Ct. at 2577, a Supreme Court precedent involving the20Immigration and Nationality Act. Simmons, 649 F.3d at 244-45.
The issue there was whether a Texas conviction for misdemeanor
possession

of

Xanax

withoutaprescription

qualifiedasan“aggravated felony” punishable by imprisonment for more than one
year. Carachuri, 130 S. Ct. at 2580-81. The Fifth Circuit heldthat it did; the Supreme Court reversed, holding that “the mere
possibility, no matter how remote,” that the defendant could
have received a two-year sentence had he been charged in federal
court for the same criminal conduct did not transform the Texas
conviction into an aggravated felony. Id. at 2583.
Carachuri

involvedadifferent

statutory

schemeandananalysis with multiple layers of speculation, but we concludedinSimmonsthattherelative

simplicity

of

the

Controlled

Substances Act analysis did “not render the Carachuri holding
inapplicable.” Simmons, 649 F.3d at 248. Instead, we construed
Carachuri as a prohibition on considering “facts not at issue inthe crime of conviction” in determining whether a conviction
qualifies

asapredicatefelony.

Id.

at

248

(quotations

andcitation omitted).
Which brings me to this case: It is difficult to see how
the majority’s hypothetical mode of analysis does not run squareinto the teeth of what Carachuri and Simmons seek to prohibit.
As the majority opinion makes clear, the North Carolina state
judge acted consistent with the provisions of the North Carolina
21Structured

Sentencing

Act:

she

made

a

finding

that

Kerr’smitigating factors outweighed those in aggravation, N.C. Gen.
Stat. § 15A-1340.16(b); Kerr had to prove those findings by apreponderance

of

the

evidence,

id.

§

15A-1340.16(a);hermitigation finding was – and had to be – in writing and part of
the record, id. § 15A-1340.16(c); and she used the mitigation
finding to arrive at a sentencing range of eight to ten months,
as contemplated by North Carolina law.
Despite all of this, the majority concludes that Kerr’s
conviction was for a “crime punishable by imprisonment for aterm exceeding one year” because the North Carolina state judge“may,” ante, at 13, have nonetheless imprisoned Kerr for up to
fourteenmonths.

In

otherwords,

Harp

redux:“[T]hemere

possibility, no matter how remote,” Carachuri, 130 S. Ct. at
2583,

coupledwithananalysisthat

ignores

a

fact

in

the

record, is sufficient to conclude that Kerr could have received
a sentence of over one year. In doing so, it transforms Kerr
into an armed career criminal deserving of a minimum of fifteen
years of “3 hots and a cot,” People v. Shulman, 843 N.E.2d 125,
134 (N.Y. 2005), on the tab of United States taxpayers.
The majority responds to all this with a paradox: first, itsays that the issue in this case was not before us in Simmons,
ante,

at

13

(“Kerr’s

appealpresents

an

issue

that

neitherSimmons nor its progeny expressly addressed”); second, it says
22

that a footnote in Simmons resolves this case, ante, at 15 (“Ourholding remains faithful to our directive in Simmons requiringthat sentencing courts examine ‘three pieces of evidence: theoffenseclass,

theoffender’sprior

recordlevel,

andtheapplicability of the aggravated sentencing range,’ 649 F.3d at
247 n.9.”).
Let’s unscramble that egg:

The

that

althoughmandate

here,

its

Simmonsdoes“directive”

is

not

majority’sanonethelessposition

particularconsistentisoutcomewiththemajority’s decision. Wrong on both counts. But, even if Simmons
weredeemeddecision,

in

the

some

sense

decisionI“consistent”
reach

is

with

equallythemajority’s“consistent”

andachieves the more sensible result.
The

majority’s

firstargument,

that

Simmonsdoes

notmandate a particular outcome here, is incorrect because it is
based

on

majorityamisunderstanding

framesdetermining

thewhether

issue
a

of

the

as:

“Must
has

defendant

issue

in

this

case.

The

a

district

court,

intherequisite

predicatefelonies for sentencing as an armed career criminal, consider
the fact that the defendant received a mitigated sentence ofless than one year in prison under North Carolina law for thosefelonies?” Ante, at 13 (emphasis added). That framing subtly
misconstrues the issue in this case: it is not the “fact” of the
defendant’s actual sentence that is relevant or the focus of23this analysis, but the defendant’s actual sentencing range. The
North Carolina state court judge made an express finding – areal-world fact - that mitigating factors outweighed those inaggravation;indeed,

she

made

that

findingbecauseitisapredicate to sentencing in the mitigated range. N.C. Gen. Stat.
§ 15A-1340.16(b).
The majority’s framing of the issue seems to be based on apeculiar

understanding

of

the

North

Carolina

Structured

Sentencing Act: it thinks that a North Carolina judge is always
inthesentence

presumptive
in

that

range

range

because

even

she

after

has

she’s

the
made

discretionthetomitigation

finding. State v. Bivens, 573 S.E.2d 259, 262 (N.C. Ct. App.
2002).
Althoughjudge

retainsthemajorityisthediscretion

correcttothatsentence

in

a

North
the

Carolina

presumptive

range even when the judge finds several mitigating factors, theexistence of that possibility alone is an insufficient basis for
ignoring the range as determined according to the North Carolina
Structured Sentencing Act. We said as much in Simmons: North
Carolina

judgesalwayshavethediscretion

to

use

the

presumptive range even after the state has proven the existenceof aggravating factors, N.C. Gen. Stat. § 15A-1340.16(a), but westated that federal district courts should pay close attention
to the actual presence and proof of those aggravating factors,
24rather than some hypothetical analysis, because it is a more
coherent

and

just

analysisthatbetterinforms

whetheradefendant is deserving of a major imprisonment term. Simmons,
649 F.3d at 244-45, 247 n.9. In the face of this, the majority
opinion is silent on why the judge’s retained discretion renders
her decision to affirmatively make the mitigation finding and to
impose a sentence based on that finding a legal nullity. Ifanything,

weshouldhonor

thejudge’s

mitigation

findingbecause, as the counterpart to the aggravation finding, it is apredicate to deviating from the presumptive range (in this case,to the mitigated range). N.C. Gen. Stat. § 15A-1340.16(b).
In

Carachuri,

the

Court

acknowledged

that

Texas

law

afforded prosecutors broad discretion in determining whether toseek a conviction whose punishment would satisfy an element offederal law (there, in the immigration context); nevertheless,that fact did not persuade the Court to base its analysis offederal law on the existence of such discretion. See 130 S. Ct.
at 2588. It is unclear to me why, if the existence of stateprosecutorialinterpretation
draconiandiscretionofoutcomes,isfederal
the

not

an

acceptable

immigration
existence

of

basis

law

that

a

similar

for

an

leads

to

judicial

discretion should permit an interpretation of federal sentencing
law that, correspondingly, leads to draconian outcomes, as the
majority concludes here. Paradox, indeed.
25

The

majority’s

approachbuildsanunwarranted

asymmetry

into our treatment of North Carolina convictions, where we pay
special attention, if not conclusive attention, to a finding of
aggravation,
mitigation.

butTopurposely
build

our

ignoreajudge’sjurisprudenceonfinding

thisofasymmetry

expresses the view that federal sentencing courts do not reallycare about a defendant’s criminal background – or at least, they
only care when it offers up the opportunity to send him to
prison for a longer period of time than common sense and simple
justice demand.
The majority’s second argument is that its holding “remains
faithful to our directive in Simmons requiring that sentencing
courts examine ‘three pieces of evidence: the offense class, theoffender’sprior

recordlevel,

andtheapplicability

of

the

aggravated sentencing range,’ 649 F.3d at 247 n.9,” ante, at 15.
This

protestationisunavailing.

Indeed,whatamemberoftoday’s majority said in railing against the en banc majority in
Simmons applies with genuine force here: “The majority opinion
puts great weight on footnote [9] of [Simmons] to undergird its
position; but that weight is more than the footnote can bear.”Simmons, 649 F.3d at 255 (Agee, J., dissenting). The core of
Simmons is (obviously) its holding, informed by Supreme Court
precedent,

of

how

the

“mere

possibility”

ofadefendant’s

conduct, “coupled with facts outside the record of conviction,”26

was insufficient for concluding that a conviction was punishable
by

more

than

(quotations

one

and

year’simprisonment.

citationsomitted)

649

F.3d

(emphasisat244-45added).

The

majority today makes that line of inquiry sufficient: Kerr’s
criminal conduct, coupled with the “mere possibility” that a
judge couldhavefinding

mitigationof

exercised(aher

discretionreal-world

fact

to

ignore

in

the

her

own

record),transforms Kerr’s conviction from one for which he could only
receive

eight

to

ten

monthsintoa“crimepunishablebyimprisonment for a term exceeding one year.” Id. § 924(e)(2)(B). 1
Because such an analysis is contingent on too many assumptions,
it is quintessentially “hypothetical” and therefore foreclosed
by Simmons and Carachuri.
The majority’s constricted reading of Simmons stems fromits refusal to acknowledge the principles that animated the core1

The majority is determined to hang its hat on UnitedStates v. Edmonds, 679 F.3d 169, 176-77 (4th Cir. 2012), for the
proposition that “the actual sentence” a defendant receives is
not the relevant point of analysis, ante, at 11-12. Edmonds isirrelevant because it did not involve a defendant who hadreceived a mitigation finding. Edmonds, 679 F.3d at 176-77. And
I am not arguing “myopically,” ante, at 14, for an assessment of
the defendant’s actual sentence; I am arguing for an assessmentof the defendant’s actual sentencing range. The majority says
this is a “distinction without a difference,” ante, at 14 n.7.
Of course, if the majority is comfortable contravening thefinding of a state court judge in a state court conviction
sustained pursuant to a state statute, then I suppose thedistinction is probably one without a difference.

27

holdingofSimmons:“well-establishedfederalism

principles”

that prohibit federal courts from “reject[ing] North Carolina’s
judgment

as

to

the

seriousness

of

a

North

Carolina

crime,

prosecuted in a North Carolina court and adjudicated by a North
Carolina
North

judge,”

Simmons,

Carolina

scheme,”

id.

649

F.3d

legislature’s
at249-50;at249;“carefully

and

an

deference

craftedunwillingness

to

the

sentencing
topermitpeculiarly harsh, “counter-intuitive and unorthodox” results infederal sentencing, id. (quoting Carachuri, 130 S. Ct. at 2585).
The majority’s decision is violative of all three principles: it
contravenes principles of federal respect for state judges andtheir assessment of offenders, the convictions those offenders
incur, and the just sentences they deserve; it re-writes forpurposes of federal law a carefully-crafted state statute; andit results in preposterous sentences.
It

is

the

last

point

opinionis

profoundly

that

wrong

resonates

most.

The

majority

the

But

what

is

on

law.

most

concerning is how completely untethered its analysis is from thetask before federal district judges in these cases: to decide
who should be treated as a repeat offender responsible for adisproportionately large percentage of violent crimes, i.e., anarmed career criminal. See United States v. Hawkins, 811 F.2d
210, 216-17 (3d Cir. 1987) (discussing the legislative historyoftheprecursor

tothecurrent
28

form

of

the

Armed

CareerCriminal Act). For example, suppose a petty criminal receives a
mitigation finding because he proved to the North Carolina state
judge

by

a

preponderance

of

the

evidence

that

he

was

under

coercion when he committed the crime, N.C. Gen. Stat. § 15A1340.16(e)(1), or was of limited mental capacity, id. § 15A1340.16(e)(4), or was a minor, id. § 15A-1340.16(e)(6). Suppose
also that the North Carolina judge, after determining that thosemitigating factors outweigh those in aggravation, concludes thatthe defendant’s range is eight to ten months. The majority’s
decision today tells federal district courts to repudiate thatfinding and treat that defendant as if he were the mastermind of
the crime, a criminal genius, or an adult, and impose a fifteenyear minimum sentence (or something closer to the twenty-two
year

sentence

imposedhere).

These

results

were

not

what

Congress intended. Overreaching by federal prosecutors, who aresometimes anxious to wield their “armed career criminal” lancets
willy-nilly, see United States v. Foster, 662 F.3d 291, 301 (4thCir. 2011) (Wynn, J., dissenting); United States v. Foster, 674
F.3d 391, 398 (4th Cir. 2012) (Motz, J., dissenting from theden. of reh’g); id. at 403-04 (Davis, J., dissenting from theden. of reh’g), should not be rewarded in this manner.
And even if there were a colorable argument that Congress
intended these types of results, the rule of lenity requiresmuchbetterevidence

before29

adoptionofthemajority’sconstruction of the Armed Career Criminal Act. At best, it is
not at all clear what Congress wants federal courts to do withthese

peculiar

wrinkles

in

North

Carolina’s

Structured

Sentencing Act, and we should not render a construction that
increases the penalty on a defendant when that construction is“based on no more than a guess as to what Congress intended.”
Ladner v. United States, 358 U.S. 169, 178 (1958). The Armed
CareerCriminal

application;Acttryingtohasproveddecidehowenormously
itshouldcomplexininteractwithequally complex state sentencing regimes is akin to proclaiming
mastery at reading tea leaves. See United States v. Rodriquez,
553 U.S. 377, 405 (2008) (Souter, J., dissenting) (arguing for
application of the rule of lenity to the Armed Career Criminal
Act). 2 Rather than boldly continue down this dreary path, we

2

As Justice Souter explained:

The rule [of lenity] is grounded in “theinstinctive distaste against men languishing in prison
unless the lawmaker has clearly said they should,” andwe have used it to resolve questions both about metes
and bounds of criminal conduct and about the severityof sentencing. This policy of lenity means that the
Court will not interpret a federal criminal statute so
as to increase the penalty that it places on an
individual when such an interpretation can be based on
no more than a guess as to what Congress intended.
United States v. Rodriquez, 553 U.S. 377, 405-06 (2008) (Souter,J., dissenting) (citations omitted). See also United States v.
Granderson, 511 U.S. 39, 54 (1994) (“[W]here text, structure,(Continued)
30

should exercise judicial restraint by holding that the statute’s
ambiguity coupled with the rule of lenity tips the scales in
favor

of

the

defendant,

therebyallowing

Congresstheopportunity to provide us with additional guidance, which is sosorely needed.
Whether

a

prior

state

judge

has

made

a

writtenfactualfinding that the circumstances in a particular case are atypicaland warrant application of a mitigated sentencing range that bydefinition does not exceed one year is a highly relevant data
point

in

assessingwhetheranindividual

is

an

armed

careercriminal. The majority does not think so; it is wrong. But thetrue error it commits is justifying its decision by sticking its
head in the sand of legal artifice.
I am willing to believe, and to act on the belief, that “noone - not even the prosecutors themselves - thinks [a twentytwo-year sentence on a fifty-one-year-old mentally ill veteranis]appropriate”

UnitedStates

v.

under

the

circumstances

of

Kupa,

---

F.

---,

Supp.

2d

this

case.

---,

2013

Cf.
WL

5550419, at *1 (E.D.N.Y. Oct. 9, 2013). The law affords us an
opportunity to decide this case on that belief. I deeply regret
the institutional ennui that precludes our doing so.

and history fail to establish that the Government’s position isunambiguously correct . . . we apply the rule of lenity.”).

31