PUBLISHED

UNITED STATES COURT OF APPEALS

FOR 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. Judge Diaz wrote the majority 

opinion, in which Judge Agee joined. Judge Davis wrote a 

dissenting opinion.

ARGUED: George Entwistle Crump, III, Rockingham, North Carolina, 

for Appellant. Ripley Eagles Rand, OFFICE OF THE UNITED STATES 

ATTORNEY, 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 SCHOOL 

OF LAW, Winston-Salem, North Carolina, for Appellee.
2

DIAZ, Circuit Judge:

A jury convicted Norman Alan Kerr of possession of a 

firearm 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 to 

268 months’ imprisonment.

Kerr raises three issues in this appeal. First, he 

contends that 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. Second, he argues that the same 

reasoning precludes his § 922(g)(1) conviction, which similarly 

requires a predicate felony offense. Finally, Kerr asserts that 

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 Kerr’s 

first two arguments and find that the third one is moot. We 

therefore affirm the district court’s judgment.
3

I.

Kerr was charged with one count of possession of a firearm 

by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 

924(e). The indictment alleged that, for the purposes of the 

ACCA, Kerr had previously been convicted of three violent 

felonies or serious drug offenses punishable by imprisonment for 

a term greater than one year. The record establishes that Kerr 

had three 2008 North Carolina state convictions for felony 

breaking and entering.1

Following a jury trial, Kerr was convicted of possession of 

a 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 three 

convictions 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 a 

crime punishable by a term of imprisonment exceeding one year 

“if any defendant charged with that crime could receive a 

sentence 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 convicted 

of 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.
4

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 in 

denying his motion to substitute counsel and in sentencing him 

under the ACCA. We placed the appeal in abeyance pending our

decision on rehearing in Simmons. Our en banc opinion in 

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 a 

sentence, taking into account his criminal history and the 

nature of his offense. See 649 F.3d at 247 & n.9. 

We subsequently affirmed the district court's denial of 

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

because Harp was no longer good law. With respect to 

sentencing, we expressed no opinion regarding whether Kerr’s 

prior 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 each 

punishable by a presumptive maximum sentence of 14 months’ 

imprisonment and thus qualified as ACCA predicates. The 

district court denied counsel’s motion to vacate and dismiss. 
5

Agreeing that the prior breaking and entering 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 state 

conviction is a predicate felony for the purposes of federal 

criminal law. See United States v. Jones, 667 F.3d 477, 482 

(4th Cir. 2012). In order for a defendant to be sentenced as an 

armed career criminal on a felon-in-possession conviction, the 

defendant must have a combination of three convictions for 

violent felonies or serious drug offenses. 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 mandated 

by North Carolina’s statutory framework. 

North Carolina’s Structured Sentencing Act directs a judge 

to impose felony sentences based on two criteria: the designated 

offense class and the offender’s prior record level. N.C. Gen. 

Stat. § 15A-1340.13(b). The Act, or in certain cases a 

different statute, sets forth the offense class. Id. § 15A-
6

1340.17(a). The sentencing judge calculates the offender’s 

prior record level by adding the points assigned to each of the 

offender’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 range, a presumptive range, and an 

aggravated range. Id. § 15A-1340.17(c). As a default, the 

judge sentences the defendant within the presumptive range. The 

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

judge makes written findings of aggravating or mitigating 

factors established by the Act, finds that aggravating factors 

outweigh mitigating factors (or vice versa), and chooses to 

depart from the presumptive range.2 Id. §§ 15A-1340.13(e), 15A1340.16(b), (c).

After identifying the applicable sentencing range, the 

judge must select the defendant’s minimum sentence from within 

 2 With respect to the aggravated sentencing range, a judge 

may depart only if the state has provided the defendant with 

written 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). With 

respect to the mitigated sentencing range, the defendant bears 

the burden of proving any mitigating factors by a preponderance 

of the evidence. Id. § 15A-1340.16(a).
7

that range.3 Id. § 15A-1340.17(c). Once the judge selects the 

minimum sentence, separate statutory charts provide the

corresponding maximum sentence. Id. § 15A-1340.17(d)-(e). 

C.

We turn now to Kerr’s three 2008 breaking and entering 

convictions, which constituted Class H felonies. At the time of 

sentencing for those state convictions, Kerr had a prior record 

level of IV. Pursuant to the statutory charts, he thus faced a 

presumptive minimum term of 9 to 11 months' imprisonment and a 

corresponding presumptive maximum sentence of 14 months’ 

imprisonment.4

The state sentencing judge found, however, that the factors 

in mitigation outweighed those in aggravation and that a 

mitigated sentence was justified. The judge then exercised her

discretion to depart from the presumptive range and sentenced 

Kerr in the mitigated range. The mitigated range included a 

possible maximum sentence of 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 and 

entering convictions, the Act’s statutory charts were amended to 

increase the maximum sentences. See Justice Reinvestment Act of 

2011, 2011 N.C. Sess. Laws 192 §§ 2(e)-(f). 
8

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 been 

sentenced to a term of imprisonment for greater than one year 

for any of his three 2008 breaking and entering convictions.5

 As 

a result, Kerr contends that he lacks the requisite predicate 

felonies for sentencing as an armed career criminal under this 

court’s reasoning in Simmons.

Simmons did not, however, decide the precise issue before 

us. Rather, we considered there whether a prior North Carolina 

state conviction for marijuana possession, for which the 

defendant faced no possibility of imprisonment, constituted an 

offense punishable by imprisonment for more than one year, 

thereby triggering a sentencing enhancement under the Controlled 

Substances Act. Simmons, 649 F.3d at 239. A panel of this 

court originally affirmed Simmons’s sentence in an unpublished 

disposition, but the Supreme Court vacated that judgment and 

 5 Kerr does not contest that these convictions were for 

crimes of violence.
9

remanded the case for further consideration in light of 

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

649 F.3d at 239.

In Carachuri-Rosendo, the question presented was whether a 

lawful permanent resident of the United States was barred from 

seeking cancellation of removal under the Immigration and 

Nationality Act (the “INA”) because he had previously been 

convicted of an aggravated felony. 130 S. Ct. at 2580. As the 

Court explained, the INA defined an “aggravated felony” to 

include any crime “punishable as a federal felony” under the 

Controlled 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 had previously been convicted of two 

misdemeanor drug possession offenses in Texas. Id. at 2580. 

The government argued nonetheless that Carachuri-Rosendo had 

been convicted of an aggravated felony because he hypothetically

could have received a two-year sentence for his second 

misdemeanor 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. Id. at 

2581.
10

The Court, however, rejected this hypothetical approach, 

reasoning that the statutory text “indicates that we are to look 

to the conviction itself as our starting place, not to what 

might have or could have been charged.” Id. at 2586. Examining 

Carachuri-Rosendo's second state conviction, the Court noted 

that he was convicted of a misdemeanor simple drug possession 

offense without any finding of recidivism. 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 term 

of 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. In reaching this conclusion, 

we explained that Carachuri-Rosendo directly undermined our 

earlier decision in Harp. Simmons, 649 F.3d at 246. 

Specifically, we determined that in deciding whether a 

sentencing enhancement was appropriate under the Controlled 

Substances Act, a district court could no longer look to 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: 
11

the offense class, the offender’s prior record level, and the 

applicability of the aggravated sentencing range.” Id. at 247 

n.9.

Applying that analysis, we first found that Simmons was 

convicted 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 a 

sentence exceeding twelve months' imprisonment only

if the State satisfies two conditions. First, the 

State must prove (or the defendant must plead to) 

the existence of aggravating factors sufficient to 

warrant the imposition of an aggravated sentence. 

Second, the State must demonstrate that the 

defendant possesses fourteen or more criminal 

history points, resulting in a "prior record level" 

of at least 5. If the State fails to satisfy either 

of these conditions, a Class I offender can never

receive more than one year's imprisonment. 

Id. (internal citations omitted). Because the State satisfied

neither condition, id. at 241, we held that Simmons’s prior 

North Carolina conviction could not be used to enhance his 

federal sentence, see id. at 244.

Following our decision in Simmons, 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. See, e.g.,

United States v. Edmonds, 679 F.3d 169, 176 (4th Cir.), vacated 

on other grounds, 133 S. Ct. 376 (2012); United States v. Leach, 

446 F. App’x 625, 626 (4th Cir. 2011) (unpublished). In 
12

Edmonds, for example, the defendant argued that he lacked a 

predicate felony offense because he actually received a sentence 

of 9 to 11 months’ imprisonment.6 679 F.3d at 176. Edmonds had 

a prior record level of IV, the offense was a Class H felony, 

and there was no showing of aggravating factors. Id. Under the 

Structured Sentencing Act, he faced a maximum presumptive 

sentence of 14 months’ imprisonment. 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 Leach 

to a maximum sentence of eleven-to-fourteen months imprisonment 

without any further factual or legal findings.”). 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--

not the sentence actually imposed--controlled whether the 

defendant 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.
13

B.

Kerr’s 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 the defendant received a mitigated sentence of 

less than one year in prison under North Carolina law for those 

felonies? To answer this question, we return to the Structured 

Sentencing Act.

As explained above, North Carolina law establishes three 

sentencing ranges based on the appropriate offense class and 

prior record level. N.C. Gen. Stat. § 15A-1340.17(c). The 

presumptive sentencing range is the default. The sentencing 

judge may deviate from the presumptive range if the judge makes 

written findings of aggravating or mitigating factors, finds 

that aggravating factors outweigh mitigating factors (or vice 

versa), and chooses to depart. Id. §§ 15A-1340.13(e), 15A1340.16(b), (c); see also Simmons, 649 F.3d at 240. But North 

Carolina law also provides that a judge may sentence a defendant 

in 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 the 

relevant mitigating factors outweighed those in aggravation and 
14

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 in 

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

sentence7 that Kerr received after the state judge weighed the 

relevant 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 it to be. Because the maximum possible prison 

sentence that Kerr faced for his prior state convictions 

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 assessment 

of the defendant’s actual sentence” but rather “for an 

assessment 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 the 

reasoning of Simmons and Edmonds.

8 Our holding today is not, as the dissent paints it, “Harp

redux,” 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 a 

predicate offense] does not depend on the sentence [a defendant] 

(Continued)
15

qualify as predicate felonies for sentencing under the ACCA. 

Our holding remains faithful to our directive in Simmons

requiring that sentencing courts examine “three pieces of 

evidence: 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 these 

three 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 the 

indictment, again because he lacked the requisite predicate 

felony offense.9 In order for a defendant to be convicted of 

possession of a firearm by a convicted felon, he must have been 

previously convicted of a crime punishable by a term of 

imprisonment exceeding one year. 18 U.S.C. § 922(g)(1).

 

actually received but on the maximum sentence that he could have 

received for his conviction.” Edmonds, 679 F.3d at 176. Our 

decision today flows from a straightforward application of our 

precedent.

 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 that 

the mandate rule does not foreclose this argument, and we agree.
16

As we have already explained, Kerr faced a presumptive 

maximum sentence of 14 months’ imprisonment for his state 

convictions. Therefore, Kerr has the requisite predicate felony 

for his § 922(g)(1) conviction. We thus hold that the district 

court did not err in denying Kerr’s motion to vacate his 

conviction and dismiss the indictment.

V.

Finally, we asked the parties to brief whether Kerr’s prior 

appellate counsel in his first appeal rendered ineffective 

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’s first appeal, the district court considered Kerr’s 

challenge to his conviction on the merits. And today we have 

concluded that Kerr is not actually innocent of his § 922(g)(1) 

conviction on the basis that he lacks a predicate felony. As a 

result, Kerr’s contention that his prior appellate counsel was 

ineffective for failing to raise this very issue in his first 

appeal is now moot. 
17

VI.

For the reasons given, we affirm the district court’s 

judgment.

AFFIRMED
18

DAVIS, Circuit Judge, dissenting:

Respectfully, I dissent.

The majority opinion runs counter to Supreme Court 

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 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 twenty-two-year sentence imposed on a fifty-one-year 

old mentally ill veteran who had previously never served more 

than ten months in prison, tagging him with the moniker “armed 

career criminal.” We can do much better than this.

The Armed Career Criminal Act requires a fifteen-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 other 

things, “any crime punishable by imprisonment 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 that 

mitigating factors are present and sufficient to outweigh any 

aggravating factors, and the defendant’s mitigated sentencing 

range for a North Carolina conviction therefore does not exceed 
19

one year, is the conviction for a crime “punishable by 

imprisonment 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 as determined 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, to ignore her own finding that 

mitigating circumstances justified a sentence in a range that 

cannot 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 should be a straightforward 

question of statutory construction. But most troubling about the 

majority opinion is that it resurrects a speculative mode of 

analysis that we – on the foundation of unmistakable Supreme 

Court authority – discarded in Simmons, 649 F.3d at 237. A bit 

of 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), 

a predicate “controlled substance offense” “punishable by 

imprisonment for a term exceeding one year.” Even though the 
20

defendant’s maximum possible punishment was only twelve months, 

we held that the proper inquiry was whether a hypothetical 

defendant with the worst possible criminal history “could” have 

received a sentence of over twelve months for committing the 

same 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 have 

authorized a conviction of crime punishable by more than one 

year’s imprisonment cannot and does not demonstrate that [the 

defendant] 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 applied the 

Controlled Substances Act sentencing enhancement; it found that 

the 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 the 
21

Immigration and Nationality Act. Simmons, 649 F.3d at 244-45. 

The issue there was whether a Texas conviction for misdemeanor 

possession of Xanax without a prescription qualified as an 

“aggravated felony” punishable by imprisonment for more than one 

year. Carachuri, 130 S. Ct. at 2580-81. The Fifth Circuit held 

that 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 involved a different statutory scheme and an 

analysis with multiple layers of speculation, but we concluded 

in Simmons that the relative 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 in 

the crime of conviction” in determining whether a conviction 

qualifies as a predicate felony. Id. at 248 (quotations and 

citation omitted).

Which brings me to this case: It is difficult to see how 

the majority’s hypothetical mode of analysis does not run square 

into 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 
22

Structured Sentencing Act: she made a finding that Kerr’s 

mitigating factors outweighed those in aggravation, N.C. Gen. 

Stat. § 15A-1340.16(b); Kerr had to prove those findings by a 

preponderance of the evidence, id. § 15A-1340.16(a); her 

mitigation 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 a 

term exceeding one year” because the North Carolina state judge 

“may,” ante, at 13, have nonetheless imprisoned Kerr for up to 

fourteen months. In other words, Harp redux: “[T]he mere 

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

2583, coupled with an analysis that 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, it 

says that the issue in this case was not before us in Simmons, 

ante, at 13 (“Kerr’s appeal presents an issue that neither 

Simmons nor its progeny expressly addressed”); second, it says 
23

that a footnote in Simmons resolves this case, ante, at 15 (“Our 

holding remains faithful to our directive in Simmons requiring 

that sentencing courts examine ‘three pieces of evidence: the 

offense class, the offender’s prior record level, and the 

applicability of the aggravated sentencing range,’ 649 F.3d at 

247 n.9.”). 

Let’s unscramble that egg: The majority’s position is 

that although Simmons does not mandate a particular outcome 

here, its “directive” is nonetheless consistent with the 

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

were deemed in some sense “consistent” with the majority’s 

decision, the decision I reach is equally “consistent” and 

achieves the more sensible result. 

The majority’s first argument, that Simmons does not 

mandate a particular outcome here, is incorrect because it is 

based on a misunderstanding of the issue in this case. The 

majority frames the issue as: “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 the defendant received a mitigated sentence of 

less than one year in prison under North Carolina law for those 

felonies?” 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 of 
24

this analysis, but the defendant’s actual sentencing range. The 

North Carolina state court judge made an express finding – a 

real-world fact - that mitigating factors outweighed those in 

aggravation; indeed, she made that finding because it is a 

predicate 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 a 

peculiar understanding of the North Carolina Structured 

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

in the presumptive range because she has the discretion to 

sentence in that range even after she’s made the mitigation 

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

2002).

Although the majority is correct that a North Carolina 

judge retains the discretion to sentence in the presumptive 

range even when the judge finds several mitigating factors, the 

existence 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 judges always have the discretion to use the 

presumptive range even after the state has proven the existence 

of aggravating factors, N.C. Gen. Stat. § 15A-1340.16(a), but we 

stated that federal district courts should pay close attention 

to the actual presence and proof of those aggravating factors, 
25

rather than some hypothetical analysis, because it is a more 

coherent and just analysis that better informs whether a 

defendant 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. If 

anything, we should honor the judge’s mitigation finding 

because, as the counterpart to the aggravation finding, it is a 

predicate 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 to 

seek a conviction whose punishment would satisfy an element of 

federal law (there, in the immigration context); nevertheless, 

that fact did not persuade the Court to base its analysis of 

federal law on the existence of such discretion. See 130 S. Ct. 

at 2588. It is unclear to me why, if the existence of state 

prosecutorial discretion is not an acceptable basis for an 

interpretation of federal immigration law that leads to 

draconian outcomes, the existence of a similar judicial

discretion should permit an interpretation of federal sentencing 

law that, correspondingly, leads to draconian outcomes, as the 

majority concludes here. Paradox, indeed.
26

The majority’s approach builds an unwarranted asymmetry 

into our treatment of North Carolina convictions, where we pay 

special attention, if not conclusive attention, to a finding of 

aggravation, but purposely ignore a judge’s finding of 

mitigation. To build our jurisprudence on this asymmetry 

expresses the view that federal sentencing courts do not really 

care 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, the 

offender’s prior record level, and the applicability of the 

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

This protestation is unavailing. Indeed, what a member of 

today’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” of a defendant’s 

conduct, “coupled with facts outside the record of conviction,” 
27

was insufficient for concluding that a conviction was punishable 

by more than one year’s imprisonment. 649 F.3d at 244-45 

(quotations and citations omitted) (emphasis added). The 

majority today makes that line of inquiry sufficient: Kerr’s 

criminal conduct, coupled with the “mere possibility” that a 

judge could have exercised her discretion to ignore her own 

finding of mitigation (a real-world fact in the record), 

transforms Kerr’s conviction from one for which he could only 

receive eight to ten months into a “crime punishable by 

imprisonment 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 from 

its refusal to acknowledge the principles that animated the core 

 1 The majority is determined to hang its hat on United 

States 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 is 

irrelevant because it did not involve a defendant who had 

received 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 assessment 

of 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 the 

finding of a state court judge in a state court conviction 

sustained pursuant to a state statute, then I suppose the 

distinction is probably one without a difference.
28

holding of Simmons: “well-established federalism 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 judge,” Simmons, 649 F.3d at 249; deference to the 

North Carolina legislature’s “carefully crafted sentencing 

scheme,” id. at 249-50; and an unwillingness to permit 

peculiarly harsh, “counter-intuitive and unorthodox” results in 

federal 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 and 

their assessment of offenders, the convictions those offenders 

incur, and the just sentences they deserve; it re-writes for 

purposes of federal law a carefully-crafted state statute; and 

it results in preposterous sentences. 

It is the last point that resonates most. 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 federal district judges in these cases: to decide 

who should be treated as a repeat offender responsible for a

disproportionately large percentage of violent crimes, i.e., an 

armed career criminal. See United States v. Hawkins, 811 F.2d 

210, 216-17 (3d Cir. 1987) (discussing the legislative history 

of the precursor to the current form of the Armed Career 
29

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 those 

mitigating factors outweigh those in aggravation, concludes that 

the defendant’s range is eight to ten months. The majority’s 

decision today tells federal district courts to repudiate that 

finding 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 imposed here). These results were not what 

Congress intended. Overreaching by federal prosecutors, who are 

sometimes anxious to wield their “armed career criminal” lancets 

willy-nilly, see United States v. Foster, 662 F.3d 291, 301 (4th 

Cir. 2011) (Wynn, J., dissenting); United States v. Foster, 674 

F.3d 391, 398 (4th Cir. 2012) (Motz, J., dissenting from the 

den. of reh’g); id. at 403-04 (Davis, J., dissenting from the 

den. 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 requires 

much better evidence before adoption of the majority’s 
30

construction of the Armed Career Criminal Act. At best, it is 

not at all clear what Congress wants federal courts to do with 

these 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 

Career Criminal Act has proved enormously complex in 

application; trying to decide how it should interact with 

equally 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 “the 

instinctive distaste against men languishing in prison 

unless the lawmaker has clearly said they should,” and 

we have used it to resolve questions both about metes 

and bounds of criminal conduct and about the severity 

of 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)
31

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, thereby allowing Congress the 

opportunity to provide us with additional guidance, which is so 

sorely needed.

Whether a prior state judge has made a written factual 

finding that the circumstances in a particular case are atypical 

and warrant application of a mitigated sentencing range that by 

definition does not exceed one year is a highly relevant data 

point in assessing whether an individual is an armed career 

criminal. The majority does not think so; it is wrong. But the 

true 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 “no 

one - not even the prosecutors themselves - thinks [a twentytwo-year sentence on a fifty-one-year-old mentally ill veteran 

is] appropriate” under the circumstances of this case. Cf.

United States v. Kupa, --- F. Supp. 2d ---, ---, 2013 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 is 

unambiguously correct . . . we apply the rule of lenity.”).