United States v. Toney Wilson, Jr. , 658 F. App'x 183 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4416
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TONEY LEE WILSON, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00482-WO-1)
Submitted: July 1, 2016 Decided: July 29, 2016
Before MOTZ, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Tiffany T. Jefferson,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant. Ripley
Rand, United States Attorney, Kyle D. Pousson, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Toney Wilson, Jr.
pleaded guilty to one count of possession of a firearm as a
felon in violation of 18 U.S.C. § 922(g)(1). Based on Wilson’s
prior state felony convictions, the district court imposed an
enhanced sentence of 180 months’ imprisonment under the Armed
Career Criminal Act, 18 U.S.C. § 924(e), (“ACCA”). On appeal,
Wilson argues that his prior North Carolina convictions for
breaking and entering do not qualify as predicate felonies under
ACCA. Pursuant to this court’s opinion in United States v.
Barlow, 811 F.3d 133 (4th Cir. 2015), cert. denied, 136 S. Ct.
2041 (2016), we conclude that Wilson’s breaking and entering
convictions under North Carolina law constitute predicate
felonies under ACCA. We therefore affirm Wilson’s sentence.
I.
After Wilson pleaded guilty to possession of a firearm by a
convicted felon, the district court applied the ACCA sentencing
enhancement based on Wilson’s prior convictions under North
Carolina law. Those convictions were the following: (1) a May
2009 conviction for felony robbery with a dangerous weapon;
(2) an October 2009 conviction for felony assault with a deadly
weapon with intent to kill, inflicting serious bodily injury;
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and (3) four August 2014 convictions for breaking and entering
in violation of N.C. Gen. Stat. § 14-54(a).
At sentencing before the district court, Wilson objected to
his convictions for breaking and entering serving as ACCA
predicates. The district court overruled Wilson’s objections
and sentenced him to 180 months’ imprisonment. This appeal
timely followed.
II.
A.
This court reviews de novo issues of statutory
interpretation. United States v. Joshua, 607 F.3d 379, 382 (4th
Cir. 2010). This includes issues involving whether a prior
state conviction qualifies as a predicate felony under federal
criminal law. See United States v. Kerr, 737 F.3d 33, 35 (4th
Cir. 2013).
B.
When he filed his appeal, Wilson argued that he should not
have been classified as an armed career criminal, reasoning that
none of his four convictions for breaking and entering were
punishable by imprisonment exceeding one year, as is required
under ACCA. See Appellant’s Br. at 7. However, as Wilson now
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acknowledges, this argument is foreclosed by our decision in
Barlow. *
In Barlow, we held that, as a function of state law, all
North Carolina felonies qualify as predicate felonies for the
purposes of ACCA. 811 F.3d at 137. North Carolina’s Justice
Reinvestment Act of 2011 mandates terms of post-release
supervision of at least nine months for all convicted felons,
except those serving sentences of life without parole. N.C.
Gen. Stat. § 15A-1368.2(a); see 811 F.3d at 137. State law
regards the mandatory post-release supervision as part of a
felon’s maximum term of imprisonment. Id. at 140. Therefore,
North Carolina law now exposes all felons to terms of
imprisonment exceeding one year for even the least serious
felony, such as breaking and entering. Id. at 138, 140.
Applying Barlow to this case, Wilson’s maximum term of
imprisonment exceeded twelve months for his breaking and
entering convictions. Under North Carolina law, Wilson’s
breaking and entering violations carry a term of imprisonment of
six to eight months, followed by a single nine-month term of
post-release supervision, thus yielding a possible term of
imprisonment of seventeen months. Here, as in Barlow, the nine
* See Appellant’s Supp. Br. at 6. Wilson wished to preserve
his appeal pending the disposition of the petition for a writ of
certiorari to the Supreme Court in Barlow. That petition has
now been denied. 136 S. Ct. 2041 (2016).
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month term of post-release supervision, as a part of a maximum
term of imprisonment, qualified Wilson for a sentence
enhancement under ACCA. For the foregoing reasons, we affirm
the district court’s sentence.
III.
We dispense with oral argument because the facts are
adequately presented in the materials before the court, and
argument would not aid the decisional process.
AFFIRMED
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