United States v. Joseph Newbold , 791 F.3d 455 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6929
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH K. NEWBOLD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:05-cr-00262-TDS-1; 1:08-cv-00698-TDS-PTS)
Argued: March 24, 2015 Decided: June 30, 2015
Before KING and GREGORY, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded by published opinion. Judge Gregory wrote
the opinion, in which Judge King and Senior Judge Davis joined.
ARGUED: Ashley N. Waring, WAKE FOREST UNIVERSITY SCHOOL OF LAW,
Winston-Salem, North Carolina, for Appellant. Michael Francis
Joseph, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee. ON BRIEF: John J. Korzen, Director,
Kathleen A. Bradway, Third-Year Student, Appellate Advocacy
Clinic, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem,
North Carolina, for Appellant. Ripley Rand, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
GREGORY, Circuit Judge:
Joseph Newbold pleaded guilty in 2005 to being a felon in
possession of a firearm. At sentencing, the district court
found he possessed three prior North Carolina state court
convictions that triggered enhancements under the Armed Career
Criminal Act (ACCA), including a fifteen-year mandatory-minimum
prison term. Newbold objected that at least one of these
convictions should not have been considered a predicate “serious
drug offense” because it was not punishable by a term of ten
years of imprisonment. On this basis, he continued to challenge
his designation as an armed career criminal on direct appeal, by
28 U.S.C. § 2255 motion, and by petition to the Supreme Court.
The Supreme Court granted Newbold’s petition and vacated our
decision affirming the district court’s denial of the § 2255
motion. It remanded the case to us for consideration in light
of Miller v. United States, 735 F.3d 141 (4th Cir. 2013), which
declared United States v. Simmons, 649 F.3d 237 (4th Cir. 2011)
(en banc), retroactively applicable on collateral review.
For the reasons that follow, we conclude that, pursuant to
Miller, a petitioner may challenge on collateral review a
Simmons error resulting in his erroneous designation as an armed
career criminal. We deny the government’s motion to remand the
case to the district court, and we vacate Newbold’s sentence and
remand for further proceedings consistent with this opinion.
2
I.
On September 8, 2005, Newbold pleaded guilty to
distributing 5.3 grams of 5-Methoxy-alpha-methyltryptamine in
violation of 21 U.S.C. § 841(a)(1); money laundering in
violation of 18 U.S.C. § 1956(a)(3)(B); and possessing a firearm
in violation of 18 U.S.C. § 922(g)(1). The Presentence
Investigation Report (PSR) grouped the three counts and used the
felon in possession count, because it produced the highest
adjusted offense level, to determine the Sentencing Guidelines
calculations for the group. After a three-level reduction for
acceptance of responsibility, the PSR calculated an offense
level of 31 and a criminal history category of VI. Although
Newbold also qualified as a career offender, the PSR used the
armed career criminal Guideline because it resulted in a higher
offense level. See U.S.S.G. § 4B1.4(b). The PSR cited three
North Carolina convictions from 1980, 1981, and 1984 as the
basis for enhanced penalties under 18 U.S.C. § 924(e) and the
corresponding Section 4B1.4 of the Guidelines. 1 It therefore
recommended a range of 188-235 months, or 15.7-19.6 years, while
also noting a statutory mandatory-minimum prison term of fifteen
years. Newbold entered written objections to these ACCA
enhancements, which the district court overruled. He received a
1 These convictions were docket numbers 79CRS46698 from
1980, 81CRS17405 from 1981, and 83CRS75483 from 1984.
3
sentence of 225 months’ imprisonment, or 18.8 years, on each
count to run concurrently, followed by three years of supervised
release on the first two counts and five years on the third
count.
Newbold appealed the armed career criminal designation,
among other issues. He argued as he had below that his previous
convictions should not count as ACCA predicates. United States
v. Newbold, 215 F. App’x 289, 297 (4th Cir. 2007) (unpublished).
The ACCA’s fifteen-year, mandatory-minimum applies to anyone who
violates § 922(g) and has three previous serious drug offense
convictions. See 18 U.S.C. § 924(e)(1); see also U.S.S.G.
§ 4B1.4 (establishing minimum offense level and criminal history
category for any defendant “who is subject to an enhanced
sentence under the provisions of 18 U.S.C. § 924 [a]s an armed
career criminal”). “Serious drug offense” is defined in
pertinent part as “an offense under State law, involving
manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance . . . 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) (emphasis
added). Newbold contended that, for each previous conviction,
he received a statutorily-prescribed, presumptive term of
4
imprisonment of less than ten years. 2 Newbold, 215 F. App’x at
297-98. Since there were no aggravating factors present in
those cases that could have subjected him to punishment above
the presumptive term, he argued the crimes were not serious drug
offenses. Id.
Applying United States v. Harp, 406 F.3d 242 (4th Cir.
2005), we found Newbold’s argument “clever” but unavailing.
Newbold, 215 F. App’x at 298. In this pre-Simmons era, we
adhered to the now-defunct rule that Newbold’s previous
convictions could be considered punishable by ten years if the
sentencing law allowed for the possibility of any defendant –
such as a defendant with the worst possible criminal history –
to be sentenced to ten years’ imprisonment for the same crime,
regardless of the maximum punishment applicable to the
circumstances of the instant defendant. See id.; Harp, 406 F.3d
at 246. In 2008, Newbold raised the same challenge in his
§ 2255 motion to vacate his sentence, which was denied a year
later while Harp was still good law. Newbold v. United States,
Nos. 1:08CV698, 1:05CR262-1, 2009 WL 2243642 (M.D.N.C. July 27,
2009).
2 In our earlier opinion, we mistakenly wrote that Newbold’s
previous drug convictions “each carried a presumptive penalty of
no more than six years.” Newbold, 215 F. App’x at 297. The
presumptive term for each Class H felony was in fact three
years. See N.C. Gen. Stat. § 15A-1340.4(f)(6) (1983) (repealed
effective Oct. 1, 1994).
5
Newbold appealed the district court’s denial of his § 2255
motion in the midst of several changes to our Circuit precedent.
First, we overruled Harp in Simmons. 649 F.3d at 241. Simmons
presented the question of whether that defendant’s previous drug
crime counted as a predicate “felony drug offense” under the
Controlled Substances Act (CSA), which is defined as an “offense
that is punishable by imprisonment for more than one year.” Id.
at 239 (quoting 21 U.S.C. § 802(44)). The maximum aggravated
penalty Simmons could have received as a first-time offender was
eight months of community punishment. Id. at 241. But, had he
been a recidivist, and had certain aggravating factors been
present, Simmons could have received a sentence exceeding twelve
months’ imprisonment under state law. Id. at 240-41. Relying
on the reasoning in Carachuri-Rosendo v. Holder, 560 U.S. 563
(2010), we rejected the argument that these hypothetical
aggravating factors made his offense “punishable” by more than
one year in prison. Simmons, 649 F.3d at 243-45. We held his
conviction could not be considered a CSA predicate triggering
that statute’s mandatory-minimum term of imprisonment. See id.
at 247.
Thereafter, in 2011, we granted Newbold a partial
certificate of appealability on the issue of whether he was
entitled to relief in light of Carachuri-Rosendo, as applied in
Simmons. However, we were forced to subsequently affirm the
6
denial of his motion to vacate because, after granting the
certificate, we decided in United States v. Powell, 691 F.3d 554
(4th Cir. 2012), that Carachuri-Rosendo was not retroactively
applicable on collateral review. 691 F.3d at 559-60. That left
Newbold with a last chance to petition the Supreme Court for
certiorari, which he did in May 2013. In another twist, while
that petition was pending, we decided Miller v. United States,
735 F.3d 141 (4th Cir. 2013), which declared that Simmons was
retroactive. Id. at 146 (explaining that Simmons altered the
class of persons that the law punishes to announce a new,
substantive rule).
On January 13, 2014, the Supreme Court granted Newbold’s
petition and remanded to this Court for further consideration in
light of Miller. Newbold v. United States, 134 S. Ct. 897
(2014) (mem.). Thus presented, somewhat miraculously, with
Newbold’s timely § 2255 petition, we granted an expanded
certificate of appealability 3 and appointed counsel. The
government subsequently submitted a motion to remand the case to
the district court to resolve the issue in the first instance,
3 In addition to reconsideration in light of Miller, the
certificate also instructed the parties to address the potential
effect, if any, of the original panel opinion in Whiteside v.
United States, 748 F.3d 541 (4th Cir. 2014), which had not yet
been reversed en banc, 775 F.3d 180 (4th Cir. 2014). The en
banc opinion in Whiteside, which never reached the question of
whether sentencing errors are cognizable on collateral review,
does not affect this case.
7
on which we reserved a decision pending oral argument.
Considering the lengthy history of Newbold’s case, and that we
have everything before us to decide this purely legal question,
we deny the government’s motion.
II.
The government concedes, as it must, that Simmons is a
retroactively applicable, substantive rule of law. Miller, 735
F.3d at 147. Still, we must ensure that the sentencing error
Newbold seeks to challenge is cognizable on collateral review.
We determine it is.
Section 2255 allows a federal prisoner to move to set aside
a sentence on the grounds “that the sentence was imposed in
violation of the Constitution or laws of the United States, or
that the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). Importantly, the statute “was intended to afford
federal prisoners a remedy identical in scope to federal habeas
corpus.” Davis v. United States, 417 U.S. 333, 343 (1974); see
also United States v. Hayman, 342 U.S. 205, 219 (1952) (“Nowhere
in the history of Section 2255 do we find any purpose to impinge
upon prisoners’ rights of collateral attack upon their
convictions.”). A non-constitutional error, however, may only
8
serve as a basis for collateral attack when it involves “a
fundamental defect which inherently results in a complete
miscarriage of justice.” United States v. Addonizio, 442 U.S.
178, 185 (1979) (internal quotation marks omitted); see also
Hill v. United States, 368 U.S. 424, 428 (1962).
Our Circuit has not yet defined the entire universe of
errors qualifying as “fundamental defects.” On the one hand, we
know that a post-conviction change in the law that renders the
defendant’s conduct no longer criminal can be corrected by
§ 2255 motion. See Davis, 417 U.S. at 346-47; see also Miller,
735 F.3d at 142. At the other end of the spectrum, we have held
that “ordinary misapplication of the guidelines . . . does not
amount to a miscarriage of justice.” United States v.
Mikalajunas, 186 F.3d 490, 496 (4th Cir. 1999). It is unclear
what might constitute an extraordinary misapplication, but we
have recently held that a mistaken career offender designation
is not cognizable on collateral review. See United States v.
Foote, ___ F.3d ___, No. 13-7841, 2015 WL 1883538, at *1 (4th
Cir. Mar. 25, 2015); id. at *9-*11 (recognizing as cognizable on
collateral review those sentencing errors, post-Booker v. United
States, 543 U.S. 220 (2005), in cases of actual innocence and
sentences issued above the statutory maximum).
This case does not present another occasion to debate
whether a mistake made in calculating a defendant’s advisory
9
Guidelines range results in a fundamental miscarriage of
justice. Here, Newbold challenges not a Guidelines error, but
his erroneous designation as an armed career criminal under the
ACCA. The career offender Guideline was never used to calculate
his sentencing range. And, his case lacks the pitfalls
preventing us from providing relief to previous petitioners,
like Deangelo Whiteside. 4 He is not in procedural default. The
government does not present, and we are not aware of, any other
potential ACCA predicate offenses in his criminal history. 5 Had
the district court not found Newbold an armed career criminal,
the circumstances of his sentencing would have been
significantly different. Newbold would not have been subject to
a fifteen-year mandatory-minimum term of imprisonment. See 18
4 We refused to equitably toll AEDPA’s statute of
limitations for Whiteside, 775 F.3d at 186, even despite the
Supreme Court’s emphasis on the need for “flexibility” and
“avoiding mechanical rules” in a court’s exercise of its
equitable powers, Holland v. Florida, 560 U.S. 631, 650 (2010)
(internal quotation marks omitted).
5 In United States v. Pettiford, 612 F.3d 270 (4th Cir.
2010), we concluded that a petitioner could not establish that
his sentence was unlawful because vacatur of two prior
convictions did not render his ACCA sentence invalid in light of
three remaining predicate convictions in his record. Id. at
277-78. While Newbold’s PSR indicated he might possess more
than three qualifying serious drug offenses, the government
points to none. We note that the only other felony controlled
substance offense in Newbold’s record occurring on a date
separate from those on which the alleged predicate offenses
occurred is a 1984, Class I felony for which the maximum penalty
was five years’ imprisonment. N.C. Gen. Stat. § 14-1.1(a)(9)
(1981) (repealed effective Oct. 1, 1994).
10
U.S.C. § 924(e)(1). He would have been subject to a ten year
maximum term on the felon in possession count. See id.
§ 924(a)(2).
Accordingly, Newbold’s § 2255 motion exposes the sentence
he received on the felon in possession count as an illegal one.
On this count, the district court imposed 225 months, or 18.8
years. However, had Newbold been convicted under § 922(g)
without three previous serious drug offenses, he would have
faced a statutory maximum penalty of 10 years. 18 U.S.C.
§ 924(a)(2). Such circumstances, where “a change in law reduces
the defendant’s statutory maximum sentence below the imposed
sentence, have long been cognizable on collateral review.” 6
Welch v. United States, 604 F.3d 408, 412-13 (7th Cir. 2010),
6We further note that the district court was simultaneously
presented with a Guidelines range of 188-235 months, or 15.7-
19.6 years, and what it thought was a statutory, fifteen-year
mandatory-minimum term. This erroneously-imposed sentencing
floor is problematic on its own. See Alleyne v. United States,
133 S. Ct. 2151, 2160 (2013) (“It is impossible to dissociate
the floor of a sentencing range from the penalty affixed to the
crime.”). In particular, it created the mistaken impression
that the district court had no discretion to vary downward from
the low end of Newbold’s range. See Hicks v. Oklahoma, 447 U.S.
343, 346 (1980) (holding that a defendant has a “substantial and
legitimate expectation” under the Fourteenth Amendment to be
deprived of his liberty only to the extent determined by the
trier of fact “in the exercise of its statutory discretion”);
cf. Brown v. Caraway, 719 F.3d 583, 588 (7th Cir. 2013)
(permitting challenge to a career offender designation from the
pre-Booker era, when the Sentencing Guidelines had the force of
law, as a “fundamental defect that constitutes a miscarriage of
justice” in a § 2241 proceeding).
11
cert denied, 131 S. Ct. 3019 (2011); see also 28 U.S.C.
§ 2255(a) (permitting petitioner to seek relief where “the
sentence was in excess of the maximum authorized by law”). It
is axiomatic that “there are serious, constitutional,
separation-of-powers concerns that attach to sentences above the
statutory maximum penalty authorized by Congress,” for it is as
if the defendant “is being detained without authorization by any
statute.” Bryant v. Warden, 738 F.3d 1253, 1283 (11th Cir.
2013), reh’g en banc denied, (11th Cir. 2014). Thus, a
defendant who “does not constitute an armed career criminal
. . . [has] received a punishment that the law cannot impose
upon him.” United States v. Shipp, 589 F.3d 1084, 1091 (10th
Cir. 2009) (internal quotation marks omitted) (citing Schriro v.
Summerlin, 542 U.S. 348, 352 (2004)). That is exactly the case
with Newbold here.
For these reasons, Newbold may challenge his sentence on
collateral review. See Foote, ___ F.3d ___, 2015 WL 1883538, at
*11 (recognizing a sentence issued in excess of the maximum
authorized by law as a fundamental defect); Welch, 604 F.3d at
412-13 (permitting a § 2255 challenge to an erroneous armed
career criminal designation on basis that the defendant received
an illegal sentence); Shipp, 589 F.3d at 1086, 1091 (determining
a defendant’s due process rights were violated where he was
erroneously sentenced as an armed career criminal). Being
12
satisfied that Newbold’s challenge is cognizable under § 2255,
we now move to the merits of the case.
III.
On appeal, Newbold challenges only the use of his 1984
conviction as an ACCA predicate. We review this legal question
of statutory interpretation de novo. United States v.
Washington, 629 F.3d 403, 411 (4th Cir. 2011); United States v.
Brandon, 247 F.3d 186, 188 (4th Cir. 2001). As we describe
below, an examination of North Carolina’s sentencing regime, as
well as Newbold’s criminal history and the circumstances of his
offense, shows that he should never have been sentenced as an
armed career criminal.
A.
At the time of Newbold’s 1984 conviction, North Carolina
sentenced criminal defendants pursuant to the Fair Sentencing
Act. Fair Sentencing grouped felonies into different classes
and assigned each class a baseline, “presumptive” term of
imprisonment. See N.C. Gen. Stat. § 15A-1340.4 (1983) (repealed
effective Oct. 1, 1994). It also set a maximum, aggravated term
of imprisonment for each offense class. See id. § 14-1.1 (1981)
(repealed effective Oct. 1, 1994). By law, the judge could only
deviate from the presumptive term by finding and recording
aggravating or mitigating factors. Id. § 15A-1340.4(b). For
13
example, if the judge found aggravating factors by a
preponderance of the evidence, she could award a sentence
somewhere in the range between the presumptive term and the
maximum aggravated term. Id. The judge was excused, however,
from making any such aggravating or mitigating findings if, in
pertinent part: 1) she imposed a prison term pursuant to a plea
arrangement; 2) she imposed the presumptive term; or 3) two or
more convictions were consolidated for judgment and the prison
term did not exceed the total of the presumptive terms for each
felony. 7 Id.
In Newbold’s case, his alleged ACCA predicate was one of
eight different offenses consolidated into two different
judgments pursuant to an April 18, 1984 guilty plea. 8 One
7 Under the successor to the Fair Sentencing Act, the
Structured Sentencing Act, the sentencing court imposed a felony
sentence contingent on the offense class and the defendant’s
“prior record level.” Simmons, 649 F.3d at 240. The court
would derive a defendant’s minimum and maximum prison term by
matching the two values on a statutory table setting forth a
mitigated, presumptive, and aggravated sentencing range. Id.
Structured Sentencing also provided several procedural
protections not available under Fair Sentencing, including
requirements that: the judge make written findings to permit a
departure from the presumptive range; the government give
thirty-days’ notice of its intent to prove aggravating factors;
and the jury find the existence of those factors beyond a
reasonable doubt. Id.
8 On brief and at oral argument, the parties represented
that Newbold pleaded guilty to seven different drug offenses.
However, comparing the offenses in the judgment forms to those
in the plea transcript and PSR, there were actually eight
separate offenses. See J.A. 276, 398-400 (referencing docket
(Continued)
14
consolidated judgment shows he received a seven-year sentence
for three of the offenses, while the second shows a ten-year
sentence for the remaining five. While reflecting the larger,
seven- and ten-year sentences, the judgments do not specify how
many years were awarded for each individual offense. They do,
however, list each offense’s statutorily-prescribed, presumptive
and maximum aggravated penalties. All told, Newbold pleaded
guilty to eight offenses in exchange for a seventeen-year
sentence, even though the presumptive terms for each of the
individual eight offenses added up to nineteen years. 9 The
alleged federal predicate was a possession with intent to sell
and deliver a controlled substance offense (the “PWID” offense).
This PWID offense was a Class H felony, which carried a
presumptive term of three years, and a maximum aggravated
penalty of ten years. 10 Id. § 15A-1340.4(f)(6); id. § 14-
numbers 83 CRS 75479/80/81/82/83/84/87 and a felony manufacture
of a Schedule II controlled substance offense without any docket
number). The plea transcript also reflects dismissal of an
additional misdemeanor, no. 83 CRS 71076, not listed in the
judgments. J.A. 276.
9
The eight offenses included three Class H and four Class I
felonies, as well as one misdemeanor, for which Fair Sentencing
prescribed three-, two-, and two-year presumptive terms,
respectively. See J.A. 278-81; N.C. Gen. Stat. § 15A-1340.4
(1983) (repealed effective Oct. 1, 1994).
10
Although the PSR cites this particular offense as the
ACCA predicate, there are three such Class H felonies contained
(Continued)
15
1.1(a)(8). The judgments do not list any aggravating or
mitigating factors.
B.
According to Newbold, he never could have received the
aggravated penalty of ten years’ imprisonment for his PWID
offense. As there are no aggravating factors listed on the
judgment, Newbold maintains he received the presumptive, three-
year term for this Class H offense. To nevertheless count it as
an ACCA predicate would violate the rule of Simmons, argues
Newbold, which teaches that “federal courts should not apply
hypothetical sentencing enhancements” thereby “lumping all
defendants – and virtually all crimes – into the same category
for the purposes of federal sentencing.” 649 F.3d at 249-50.
We agree that Simmons governs the outcome here. The
controlling inquiry, however, is not what sentence Newbold
actually received for the individual PWID offense within the
larger, consolidated judgment. See United States v. Valdovinos,
760 F.3d 322, 327 (4th Cir. 2014). Instead, we must determine
the maximum penalty that Newbold potentially faced given his
particular offense and his particular criminal history. Such an
analysis of “the maximum possible sentence that the particular
in the two consolidated judgments, neither of which lists any
aggravating factors. Our analysis applies equally to all
offenses of this class.
16
defendant could have received” requires examination of a
defendant’s “offense class” and “the applicability of the
aggravated sentencing range.” 11 United States v. Kerr, 737 F.3d
33, 37 (4th Cir. 2013). This is in contrast to our past
practice under Harp, where we looked to “the maximum aggravated
sentence that could be imposed for th[e] crime upon a defendant
with the worst possible criminal history.” 406 F.3d at 246.
Ever since Simmons overruled Harp, where there are no
aggravating factors, we consider the presumptive term to be the
maximum applicable punishment. We have held so even in cases
where the defendant actually received a sentence below the
presumptive term, either due to the existence of mitigating
factors, Kerr, 737 F.3d at 38-39, or pursuant to a statutorily
binding plea agreement, Valdovinos, 760 F.3d at 327.
Newbold has conclusively demonstrated that there is nothing
in the record supporting the government’s contention that his
PWID offense was punishable by ten years. As discussed, the
alleged federal predicate was a Class H offense. The North
11Under Structured Sentencing, we also look to the
defendant’s “prior record level,” a value assigned to his
criminal history. Kerr, 737 F.3d at 37. The Fair Sentencing
law did not treat a defendant’s criminal history as a “prior
record level,” but instead considered recidivism as an
aggravating factor. § 15A-1340.4(a)(1)(o) (including as an
aggravating factor any prior conviction of more than 60 days’
confinement). Therefore, in applying Simmons to Fair
Sentencing, we need only look to the offense class and
applicability of the aggravated sentencing range.
17
Carolina legislature assigned to this felony class a presumptive
term of three years, and a maximum aggravated penalty of ten
years; that is, the law established an aggravated range, above
the presumptive term, of three to ten years. An examination of
the conviction itself, as Simmons instructs, 649 F.3d at 243,
reveals that the state court judgment contains no aggravating
factors supporting a sentence within the aggravated range. Nor
does Newbold’s plea transcript reflect his admission of any such
facts. There is simply nothing to support the idea that Newbold
ever faced more than the presumptive term of three years for the
state court, PWID conviction that the government now seeks to
use as a federal ACCA predicate. 12 See United States v. Lockett,
782 F.3d 349, 352 (7th Cir. 2015) (refusing to permit the use of
prior state court convictions as qualifying ACCA offenses where
“there is no indication in the record . . . [of] ever [being]
exposed to the Illinois recidivist enhancement that would have
12 We further note that the sentence itself does not even
support the idea that the PWID offense alone was punishable by
ten years. Cf. Lockett, 782 F.3d at 352 (reasoning that the
alleged federal predicate offense could “only be evaluated in
light of the actual . . . sentence imposed” where the record of
conviction did not contain findings of recidivism enhancements).
To recall, Newbold received ten years on five different charges.
If the Class H, PWID offense had been punishable by ten years,
this would mean Newbold received zero days of imprisonment for
each of the other four offenses. We find it highly improbable
that this was the sentencing court’s logic, especially since the
consolidated judgment included not one, but two of the same,
Class H offenses.
18
brought [the] maximum [state court conviction penalty] up to the
ACCA-triggering minimum”).
Despite this lack of support in the record, the government
asserts that we may consider the Class H offense punishable by
ten years. Tellingly, the government does not actually argue
that there were aggravating circumstances surrounding Newbold’s
PWID offense such that receiving a ten-year term was ever a
possibility. Instead, because the Fair Sentencing Act did not
require the state court to record aggravating factors in the
case of a plea agreement, see N.C. Gen. Stat. § 15A-1340.4(b),
the government asks us to assume the existence of unrecorded
aggravating factors. Engaging in this type of speculation,
however, would turn Simmons on its head. The absence of any
aggravating factors in the record may have been sufficient to
support Newbold’s sentence under state law, but it cannot change
our inquiry under Simmons for federal sentencing purposes. Such
an approach would return us to the inexorable problem of the
hypothetical, worst-case defendant. “Simmons, and Carachuri
before it, teach that we may not measure a defendant’s maximum
punishment based on a hypothetical charge, a hypothetical
criminal history, or other ‘facts outside the record of
conviction.’” Valdovinos, 760 F.3d at 327 (quoting Simmons, 649
F.3d at 244). The government’s argument is therefore
unavailing, as it is only by entertaining the existence of
19
aggravating factors “outside the record of conviction” that
would allow us to say, hypothetically, that Newbold could have
received ten years for the PWID crime. 13 Simmons, 649 F.3d at
244; see also Lockett, 782 F.3d at 352.
Accordingly, when we follow Simmons to consider not the
hypothetical defendant, but the specific criminal history of
Newbold and the circumstances of his offense, it is clear that
the maximum sentence Newbold faced for the PWID offense was the
presumptive, three-year term, meaning he cannot be considered an
armed career criminal. It is of no moment that Simmons involved
a different federal statute. See Kerr, 737 F.3d at 34-35
(applying Simmons to the ACCA and finding the defendant
possessed the requisite violent felonies making him an armed
career criminal); United States v. Norman, 462 F. App’x 307,
310 (4th Cir. 2012) (unpublished) (applying Simmons to the ACCA
and finding the defendant’s prior state conviction did not
qualify as a serious drug offense). Indeed, there is no reason
why Simmons should not apply to the ACCA when we had previously
13If we were to entertain hypotheticals, the fact that
Newbold received a seventeen-year sentence for eight offenses
between the two consolidated judgments, even though the
presumptive terms of each offense added up to nineteen years,
suggests that there were unrecorded mitigating, not aggravating,
factors at play. The lack of any recorded factors in the
record, however, should neither advantage nor disadvantage
Newbold.
20
adjudicated ACCA predicates under the rule of Harp. See United
States v. Williams, 508 F.3d 724, 729 (4th Cir. 2007).
We must also reject the government’s argument that McNeill
v. United States, 131 S. Ct. 2218 (2011), obligates a contrary
result. As we have previously explained, nothing in McNeill
undermines our Simmons holding. Simmons, 649 F.3d at 245 n.6.
The government also overlooks the fact that the defendant in
that case never raised the argument asserted here by Newbold.
McNeill principally involved whether a federal sentencing court
should consult the state law at the time of the state
conviction, or that in place at the time of the federal
prosecution, when deciding if the prior offense was punishable
by ten years. 131 S. Ct. at 2220. A unanimous Supreme Court
instructed us to look to the law at the time of the state
conviction. Id. Of course, the Supreme Court also found that
the defendant’s drug offense, for which he served ten years, was
properly considered an ACCA predicate. As we determined in
Simmons, “crucial to the McNeill holding was the fact that North
Carolina courts actually sentenced [McNeill] to ten years in
prison.” 649 F.3d at 245 n.6 (internal quotation marks omitted,
alteration in original). This outcome is in no way inconsistent
with our holding today. Simmons, as well as common sense,
dictates that where a defendant actually receives a ten-year
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sentence, clearly that offense is punishable by ten years for
the purposes of the ACCA.
IV.
We remain ever-mindful that “[j]ustice consists not only of
convicting the guilty, but also of assigning them a lawful and
just punishment.” Mikalajunas, 186 F.3d at 502 (Murnaghan, J.,
dissenting). Newbold does not possess the requisite, predicate
“serious drug offenses” making him an armed career criminal.
His sentence is
VACATED AND REMANDED.
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