PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4568

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JAMES MORRIS SELLERS,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Florence. R. Bryan Harwell, District Judge. 

(4:13-cr-00783-RBH-1)

Argued: September 17, 2015 Decided: November 18, 2015

Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge Shedd wrote the opinion,

in which Judge Niemeyer and Judge Keenan joined.

ARGUED: William Fletcher Nettles, IV, OFFICE OF THE FEDERAL 

PUBLIC DEFENDER, Florence, South Carolina, for Appellant. 

Jimmie Ewing, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, 

South Carolina, for Appellee. ON BRIEF: Kimberly H. Albo, 

Research and Writing Specialist, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Columbia, South Carolina, for Appellant. William N. 

Nettles, United States Attorney, Columbia, South Carolina, 

Alfred W. Bethea, Jr., Assistant United States Attorney, OFFICE 

OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for 

Appellee. 
2

SHEDD, Circuit Judge:

A federal jury convicted James Morris Sellers of unlawfully 

possessing a firearm, in violation of 18 U.S.C. § 922(g)(1). At 

sentencing, the district court determined that Sellers qualified 

as an armed career criminal under the Armed Career Criminal Act 

(“ACCA”), 18 U.S.C. § 924(e), because his three prior South 

Carolina drug convictions were offenses “for which a maximum 

term of imprisonment of ten years or more is prescribed by law.” 

On appeal, Sellers contends that his prior drug convictions 

do not qualify him as an armed career criminal because the state 

court sentenced him pursuant to South Carolina’s Youthful 

Offender Act (“YOA”), S.C. Code Ann. § 24-19-50, which permits 

courts to cap the maximum penalty for certain offenders at six 

years in custody. Sellers acknowledges that we rejected this 

argument in United States v. Williams, 508 F.3d 724 (4th Cir. 

2007), but he contends that Williams is no longer good law in 

light of our decision in United States v. Simmons, 649 F.3d 237 

(4th Cir. 2011) (en banc).

We reaffirm our holding in Williams. Simmons and its 

progeny reinforce Williams’ directive that courts evaluating 

whether a prior conviction qualifies as a predicate for a 

federal sentence enhancement look to the statutory penalty for 

the prior conviction, not the sentence the defendant received. 

As we explained in Williams, YOA offenses can qualify as ACCA 
3

predicates because the maximum statutory penalty for the prior 

conviction is unaffected by the state court’s exercise of its 

discretion to impose a sentence of six years or less in custody. 

We therefore affirm the district court’s judgment.

I.

In February 1999, Sellers pled guilty in state court to 

three indictments charging him with possession with intent to 

distribute crack cocaine, in violation of S.C. Code Ann. § 44-

53-375(B). The court sentenced him to an indeterminate period of 

custody not to exceed six years pursuant to the YOA,1 which 

provides that “[i]n the event of a conviction of a youthful 

offender the court may:” (1) suspend the sentence and place the 

youthful offender on probation; (2) release the youthful

offender to the custody of the Youthful Offender Division before 

sentencing for an observation and evaluation period of up to 60 

days; (3) sentence the youthful offender indefinitely to the 

custody of the Department of Corrections for treatment and 

supervision until discharged by the Youth Offender Division, the

period of custody not to exceed six years; or (4) sentence the

 1 Sellers and the Government both state in their briefs that 

Sellers was sentenced to an indeterminate period of detention

not to exceed six years, but Sellers’ presentence report states 

that the sentence was not to exceed five years. J.A. at 44 ¶ 21. 

Whether Sellers was sentenced to five or six years has no impact 

on our analysis. 
4

youthful offender under any other applicable penalty provision, 

if it finds that he will not derive benefit from treatment. S.C. 

Code Ann. § 24-19-50(1)-(4) (emphasis added).

In March 2014, a federal jury found Sellers guilty of 

unlawfully possessing a firearm, in violation of 18 U.S.C. 

§ 922(g)(1). The presentence report (“PSR”) recommended that the 

district court sentence Sellers as an armed career criminal 

pursuant to the ACCA. In relevant part, the ACCA imposes an 

enhanced sentence on a defendant convicted of being a felon in 

possession of a firearm if the defendant has three prior 

convictions for a “serious drug offense,” i.e., an offense 

carrying a maximum term of imprisonment of ten years or more. 18 

U.S.C. § 924(e)(2)(A). The PSR identified Sellers’ three South 

Carolina drug convictions as qualifying “serious drug 

offense[s]” because the statute of conviction, S.C. Code Ann. 

§ 44-53-375(B), provided a maximum term of 15 years of 

imprisonment for a first offense and enhanced maximum sentences

for subsequent offenses. 

Sellers objected to the PSR, asserting that the three prior 

drug convictions were not punishable by a maximum term of 

imprisonment of ten years or more because the YOA imposed a

maximum penalty of six years in custody. Sellers recognized that 

we rejected this contention in Williams, but he argued that 

Williams was abrogated by our decision in Simmons. The district 
5

court overruled Sellers’ objection and sentenced him as an armed 

career criminal to a term of 210 months of imprisonment and five

years of supervised release.

II.

Sellers reiterates his objection on appeal, arguing, as he 

did below, that his three prior drug convictions do not trigger

the ACCA’s sentence enhancement. In Sellers’ view, because the

sentencing judge failed to find that he would not derive benefit 

from treatment, the YOA capped his sentence at six years.

In considering a district court’s determination that a 

defendant qualifies for an enhanced sentence under the ACCA, we 

review its factual findings for clear error and its legal 

conclusions de novo. United States v. Wardrick, 350 F.3d 446, 

451 (4th Cir. 2003). 

A.

In state court, Sellers had been charged with and pled 

guilty to three counts of possession with intent to distribute 

crack cocaine, in violation of S.C. Code Ann. § 44-53-375(B). 

Because he was 20 years old at the time of his conviction, the 

state court was permitted to sentence him under the YOA. See

S.C. Code Ann. § 24-19-10(d). The YOA “sets forth a 

discretionary sentencing alternative,” Williams, 508 F.3d at 

727, that in pertinent part allows a sentencing judge to either 

commit a youthful offender to an indefinite period of custody
6

not to exceed six years or, if he “finds that the youthful 

offender will not derive benefit from treatment,” to sentence 

him “under any other applicable statutory provision,” S.C. Code 

Ann. § 24-19-50(3)-(4).

In Williams, the defendant argued that his prior South 

Carolina conviction for possession with intent to distribute 

crack cocaine did not qualify as an ACCA predicate despite the 

statutory maximum penalty of 15 years in prison because he was 

sentenced to an indeterminate period of confinement not to 

exceed six years pursuant to the YOA. He asserted that once a

state court “uses the YOA to designate an offender as one who 

cannot receive a sentence in excess of six years, the offense of 

conviction no longer carries a possible term of imprisonment of 

ten years or more and therefore does not qualify as a ‘serious 

drug offense.’” Williams, 508 F.3d at 727. We squarely rejected 

this characterization of sentencing under the YOA, reasoning 

that “the language of the YOA is permissive, not mandatory.” Id.

(emphasis added).

We further rejected the contention that we “should look to 

the sentence actually imposed, rather than the range of 

penalties to which [the defendant] was potentially subject,” to 

determine whether a prior conviction qualifies as an ACCA 

predicate. Id. at 728. Because the plain language of the ACCA 

“directs courts to consider the statutory penalty for the prior 
7

conviction, not the sentence the defendant in fact received,” we 

held that a prior conviction “qualifies as a ‘serious drug 

offense’ if the statute of conviction permits the imposition of 

a sentence of ten years or more.” Id. (emphasis in original). We 

concluded that Williams’ prior drug conviction was one for which 

a maximum term of imprisonment of ten years or more was 

prescribed by law, despite the fact that the state court 

exercised its discretion to sentence him to a lesser term. Id.

at 730. Sellers now asserts that this holding has been abrogated

by our decision in Simmons.

B.

In Simmons, we considered whether a prior North Carolina 

conviction was punishable by more than one year in prison under 

“the unique statutory regime mandated by the North Carolina 

Structured Sentencing Act.”2 649 F.3d at 239-40 (emphasis added). 

 2 In Simmons, we were tasked with determining whether a 

prior conviction qualified as a predicate for a federal sentence 

enhancement under the Controlled Substances Act (“CSA”), which 

imposes a mandatory minimum of ten years in prison if the 

offense conduct occurred “after a prior conviction for a felony 

drug offense has become final.” 21 U.S.C. § 841(b)(1)(B). The 

CSA defines “felony drug offense” as a drug-related offense 

“that is punishable by imprisonment for more than one year.” 21 

U.S.C. § 802(44). The critical question was therefore whether 

Simmons’ prior conviction was punishable by a prison term 

exceeding one year. 

The issue currently before us is whether Sellers’ prior 

convictions qualify as predicates under a portion of the ACCA

that imposes an enhanced sentence on offenders who have three 

prior drug-related convictions punishable by ten years of 

(Continued)
8

Under the Structured Sentencing Act, sentences are contingent on 

two factors established by statute: the class of offense and the 

offender’s prior record level. N.C. Gen. Stat. § 15A-1340.13(b). 

The sentencing judge must match the class of offense and prior 

record level to a statutory table, which provides three possible 

sentencing ranges: a mitigated range, a presumptive range, and 

an aggravated range. Id. § 15A-1340.17(c). 

As we explained, “[t]he presumptive range governs unless 

the judge makes written findings that identify specific factors, 

separately designated by the [Structured Sentencing] Act, that 

permit a departure to the aggravated or mitigated range.” 

Simmons, 649 F.3d at 240. “[A] judge may select from the 

aggravated range only if the State has provided a defendant 

thirty-days’ notice of its intent to prove the necessary 

aggravating factors and a jury has found beyond a reasonable 

doubt (or the defendant has pled to) the existence of those 

factors.” Id. (internal citations omitted). The sentencing judge 

has no control over whether these conditions are fulfilled and 

has no discretion to impose a sentence in the aggravated range 

absent their satisfaction. Importantly, the Structured 

 

imprisonment or more. See 18 U.S.C. § 924(e). Although the CSA 

requires a one-year term of imprisonment while the provision of 

the ACCA at issue here requires a ten-year term, we conclude

that the analysis is the same.
9

Sentencing Act does not create a discretionary, guidelines 

system; rather, “it mandates specific sentences, so no 

circumstances exist under the Structured Sentencing Act in which 

a North Carolina judge may impose a sentence that exceeds the 

top of the range set forth in the Act.” United States v. 

Valdovinos, 760 F.3d 322, 326 (4th Cir. 2014) (emphasis in 

original) (internal quotation marks omitted). To be clear, under 

the Structured Sentencing Act, the judge has “no discretion to 

impose a more severe sentence even in extraordinary cases.”

Simmons, 649 F.3d at 240 n.2 (emphasis added).

Before Simmons, we determined whether a prior North 

Carolina conviction was punishable by a prison term exceeding 

one year by looking to “the maximum aggravated sentence that 

could be imposed for that crime upon a defendant with the worst 

possible criminal history.” United States v. Harp, 406 F.3d 242, 

246 (4th Cir. 2005) (second emphasis added), overruled by

Simmons, 649 F.3d 237. However, the Supreme Court’s decision in 

Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), caused us to 

reconsider this use of a hypothetical worst-case offender. 

In Carachuri, the Court examined a provision of the 

Immigration and Nationality Act (“INA”) that allows an alien who 

“has not been convicted of any aggravated felony” to seek 

cancellation of removal. Id. at 566-67; 8 U.S.C. § 1229b(a)(3). 

The INA limits “aggravated felon[ies]” in part to certain drug-
10

related offenses for which the “maximum term of imprisonment 

authorized” is “more than one year.” Carachuri, 560 U.S. at 567

(quoting 18 U.S.C. § 3559(a)). The government argued that the 

second of Carachuri’s two prior Texas misdemeanor drug 

possession convictions qualified as an aggravated felony because 

Carachuri could have received a two-year prison sentence had he 

been prosecuted in federal court instead of state court. The 

Supreme Court rejected this approach, explaining that it was 

irrelevant whether the conduct underlying the defendant’s prior 

conviction hypothetically could have received felony treatment. 

The Court held instead that the dispositive question for 

determining whether a defendant had committed an aggravated 

felony was whether he was actually convicted of an offense 

punishable by more than one year in prison. Id. at 581-82.

Applying this rationale in Simmons, we abandoned our use of 

a hypothetical defendant with the worst possible criminal 

history and held instead that a prior North Carolina conviction 

is punishable by a prison term exceeding one year only if the 

particular defendant’s offense of conviction was punishable by a 

prison term exceeding one year. 

C.

Here, Sellers contends that in the wake of Simmons, our 

analysis of whether his prior drug convictions qualify as ACCA 

predicates is governed by the maximum possible sentence that he
11

could have received once the state court decided he would 

benefit from treatment under the YOA. Sellers equates the YOA 

with the Structured Sentencing Act at issue in Simmons, 

asserting that just as the Structured Sentencing Act forbids

North Carolina judges from imposing a sentence in the aggravated 

range absent a finding of aggravating factors, the YOA prohibits

South Carolina judges from imposing a sentence greater than six 

years in custody absent a finding that the youthful offender

would not benefit from treatment. He argues that, like in 

Simmons, the sentencing judge in his case failed to make the 

factual finding necessary to warrant a higher sentence. 

Accordingly, he asserts, the YOA imposed a maximum sentence of 

six years in custody, and his prior convictions do not qualify 

as ACCA predicates. 

Sellers’ argument is incorrect for two important reasons. 

First, Sellers fails to appreciate the key distinction between 

the Structured Sentencing Act and the YOA: the Structured 

Sentencing Act is a legislative mandate that strictly prohibits 

the sentencing judge from imposing a sentence that exceeds the

maximum fixed by the statutory chart, while the YOA is a 

discretionary alternative that provides the sentencing judge 

with the authority to impose an increased sentence. Second, 

Sellers looks to the sentence that was actually imposed, rather 

than the sentence he faced; we have repeatedly rejected this 
12

approach, even after Simmons. See, e.g., United States v. Kerr, 

737 F.3d 33, 38 (4th Cir. 2013), cert. denied, 134 S. Ct. 1773 

(2014). Simmons and its progeny foreclose Sellers’ contention

that his sentences under the YOA do not qualify as ACCA 

predicates.

1.

In Kerr, for example, the defendant argued that his prior 

North Carolina convictions did not qualify as predicate felonies 

for a federal sentence enhancement because the sentencing judge 

exercised her discretion to impose a sentence in the Structured 

Sentencing Act’s mitigated range, which provided a maximum 

possible sentence of 11 months in prison, as opposed to the 

presumptive range, which provided a term of 9-14 months in 

prison. Id. at 36. We rejected the argument that the mitigated 

range’s 11-month cap meant that Kerr’s prior conviction was not 

punishable by more than one year in prison and held instead that 

the presumptive range determined his maximum term of 

imprisonment. Although the sentencing judge determined that 

mitigating factors warranted a sentence within the mitigated 

range, “the maximum possible prison that Kerr faced for his 

prior state convictions” was determinative because “the judge 

remained free at all times to sentence Kerr to a presumptive 

prison term of up to 14 months.” Id. at 38-39 (second emphasis 

added).
13

Similarly, in Valdovinos, the defendant asserted that his 

prior North Carolina conviction did not qualify as a predicate 

felony because he was sentenced pursuant to a plea agreement 

that provided for a maximum sentence of 12 months of 

imprisonment. 760 F.3d at 324-25. Despite the language of the 

plea agreement, we held that the prior conviction was punishable 

by a prison term exceeding one year because the Structured 

Sentencing Act authorized a maximum sentence of 16 months of 

imprisonment for the conviction. We emphasized “[t]hat the 

sentence ultimately imposed pursuant to [Valdovinos’] plea deal 

was 10 to 12 months’ imprisonment [was] irrelevant,” because

whether a prior conviction qualifies as a sentencing predicate 

depends on the maximum sentence permitted, not the sentence a 

defendant actually received. Id. at 327 (citing United States v. 

Edmonds, 679 F.3d 169, 176 (4th Cir. 2012), vacated on other 

grounds, 133 S. Ct. 376, aff’d on remand, 700 F.3d 146 (4th Cir. 

2012)). We rejected Valdovinos’ contention that the plea 

agreement established his maximum potential punishment because, 

unlike the Structured Sentencing Act, “under which a judge may 

never impose a sentence that exceeds the top of the range set 

forth in the Act, . . . the sentencing judge remains free to 

reject the [plea] agreement.” Id. at 328 (second emphasis added)

(internal citation and quotation marks omitted).
14

Finally, in United States v. Bercian-Flores, the defendant 

argued that a prior federal conviction with a statutory maximum 

sentence of five years in prison did not qualify as a predicate 

felony because the mandatory Sentencing Guidelines range in 

effect at the time of his sentencing was zero to six months of 

imprisonment. 786 F.3d 309, 310 (4th Cir. 2015). Much like 

Sellers, Bercian-Flores analogized to the North Carolina 

Structured Sentencing Act, asserting that just as the sentencing 

judge in Simmons failed to find the existence of aggravating 

factors and thus could not impose a sentence in the aggravated 

range, his sentencing judge failed to find facts that warranted 

an upward departure and therefore could not impose a sentence 

outside of the Guidelines range. We rejected Bercian-Flores’ 

argument and held that the statutory maximum sentence set by the 

applicable legislative body – not the top sentence in a 

guidelines range – is determinative of whether a prior 

conviction constitutes a predicate felony. As we explained,

“Simmons did not change the fact that the cornerstone of our 

predicate-felony analysis must be the defendant’s offense of 

conviction. The qualification of a prior conviction as a 

sentencing predicate does not depend on the sentence a defendant 

actually received but on the maximum sentence permitted for his 

offense of conviction.” Id. at 315-16 (internal alterations, 

citations, and quotation marks omitted). Our conclusion hinged 
15

on the fact that even under the mandatory Sentencing Guidelines 

in effect at the time Bercian-Flores was sentenced for his prior 

conviction, “the district court had discretion to sentence 

Bercian-Flores up to the statutory maximum of five years” in 

prison. Id. at 315 (emphasis added).

2.

These cases set forth two important and interrelated

principles that govern our analysis of whether a prior 

conviction qualifies as a predicate for a federal sentence 

enhancement after Simmons. The first is that “the cornerstone of 

our predicate-felony analysis” is the maximum sentence permitted 

by the defendant’s offense of conviction, not the sentence the 

defendant actually received. Id. at 315-16 (citing Valdovinos, 

760 F.3d at 327). The second is that “the salient question to be 

asked after Simmons is whether the sentencing judge could

sentence a particular defendant” to a qualifying term of 

imprisonment. Id. at 315 (emphasis in original) (citing 

Valdovinos, 760 F.3d 322; Kerr, 737 F.3d 33).

The application of these principles requires us to reject 

Sellers’ argument and reaffirm our holding in Williams. First,

Simmons and its progeny reinforce, rather than reject, Williams’ 

directive that we “consider the statutory penalty for the prior 

conviction, not the sentence the defendant in fact received.” 

Williams, 508 F.3d at 728 (emphasis in original). In addition, 
16

we conclude that the sentencing judge could have sentenced 

Sellers to more than ten years in prison for his three 

violations of S.C. Code Ann. § 44-53-375(B). When Sellers 

appeared before the state court to receive his sentence, the YOA 

provided the sentencing judge with complete discretion to find 

that Sellers would not derive benefit from treatment and to 

sentence him to a term of imprisonment that exceeded ten years. 

See Williams, 508 F.3d at 727; Ballard v. State, 187 S.E.2d 224, 

226 (S.C. 1972) (holding that the YOA gives the trial judge “the 

right, in his discretion, to impose a sentence under [any of 

the] subsections” in the Act without requiring that “specific 

factual findings be made a part of the record”); S.C. Code Ann. 

§ 44-53-375(B) (providing maximum term of 15 years of 

imprisonment for first offense and enhanced maximums for 

subsequent offenses). As in Kerr, Valdovinos, and BercianFlores, the fact that the sentencing judge retained the 

discretion at all times to sentence Sellers to the statutory 

maximum penalty controls the outcome of this case.

Consistent with Williams, we therefore hold that a prior 

South Carolina conviction for which a defendant received a YOA 

sentence of an indefinite period of confinement not to exceed 

six years qualifies as a predicate for a federal sentence 

enhancement where the statute of conviction prescribes a 

qualifying term of imprisonment. Accordingly, Sellers’ three 
17

South Carolina convictions for violations of S.C. Code Ann.

§ 44-53-375(B) are offenses “for which a maximum term of 

imprisonment of ten years or more is prescribed by law,” 18 

U.S.C. § 924(e)(2)(A)(ii), triggering the ACCA’s sentence 

enhancement. 

III.

For the foregoing reasons, we hold that Sellers’ three 

prior South Carolina drug convictions qualify as ACCA 

predicates. The district court therefore did not err in 

sentencing Sellers as an armed career criminal, and the judgment 

of the district court is affirmed.

AFFIRMED