United States v. Jose Valdovinos , 760 F.3d 322 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4768
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE RAMON SOLIS VALDOVINOS, a/k/a Angel Victorio Mendoza,
a/k/a Jose Valdavinos,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:13-cr-00183-FDW-1)
Argued: May 15, 2014 Decided: July 25, 2014
Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by published opinion. Judge Motz wrote the majority
opinion, in which Judge Diaz joined. Senior Judge Davis wrote a
dissenting opinion.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Henderson Hill,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:
Jose Valdovinos, a citizen of Mexico, pled guilty to
unlawfully entering the United States after being deported, in
violation of 8 U.S.C. § 1326(a). The district court increased
Valdovinos’s sentence on the ground that he illegally reentered
the country after a prior North Carolina conviction for felony
drug trafficking, i.e., a drug offense punishable by more than
one year in prison. See U.S.S.G. § 2L1.2(b)(1)(B). Valdovinos
challenges his sentence enhancement, arguing that this prior
conviction was not punishable by more than a year in prison
because he was sentenced pursuant to a plea agreement that
capped his prison term at 12 months. Accordingly, he contends,
the prior North Carolina conviction was not a felony for
Guidelines purposes. For the reasons that follow, we affirm.
I.
Valdovinos entered the United States in November 2008 and
quickly ran afoul of the law. Authorities in Mecklenburg
County, North Carolina arrested him the following month on drug
trafficking charges. Valdovinos pled guilty in state court to
four counts of selling heroin, each a Class G felony offense
under North Carolina law. See N.C. Gen. Stat. § 90-95(a) & (b).
Because Valdovinos had no criminal record, his prior-record
level was I. The state court made no findings of either
2
aggravation or mitigation. Based on these facts, the parties
agree that Valdovinos’s prior conviction carried a maximum
statutory sentence of 16 months in prison pursuant to North
Carolina’s Structured Sentencing Act (“the Act”). See N.C. Gen.
Stat. § 15A-1340.17(c) & (d) (codifying North Carolina
sentencing scheme) (version effective until November 2009). 1
But Valdovinos was sentenced pursuant to a plea agreement
that, upon acceptance by the court, established a binding
sentencing range of 10 to 12 months’ imprisonment. Under state
law, once the trial judge accepted the plea, the judge had to
sentence Valdovinos within the agreement’s recommended range.
See N.C. Gen. Stat. § 15A-1023(b) (codifying role of sentencing
judge in plea arrangements relating to sentence). Of course,
the judge remained free to reject the recommended range along
with Valdovinos’s guilty plea. See id. But in this case the
judge elected to accept the agreement and accordingly sentenced
Valdovinos to 10 to 12 months in prison. In January 2010, after
serving his sentence, Valdovinos was removed to Mexico.
1
In December 2011, the North Carolina legislature amended
the Act to provide for higher maximum terms of imprisonment.
See N.C. Gen. Stat. § 15A-1340.17(d). The maximum sentence for
an offender in Valdovinos’s position (Class G felony, prior
record level of I, and no findings of mitigation or aggravation)
is now 25 months’ imprisonment. Valdovinos was convicted before
the amendment, however, so the previous maximum penalty of 16
months applies here.
3
In May 2013, Valdovinos reentered the United States without
permission and returned to North Carolina. He was arrested a
few weeks later for resisting a public officer, and charged with
illegal reentry by a removed alien in violation of 8 U.S.C.
§ 1326(a). He pled guilty to the charge.
In preparation for Valdovinos’s sentencing, a probation
officer prepared a presentence report calculating Valdovinos’s
recommended term of imprisonment for this reentry conviction.
The probation officer recommended a base offense level of 8 and
a 12-point enhancement on the ground that Valdovinos had
previously been convicted of a “felony drug trafficking
offense,” i.e., his 2009 North Carolina conviction for selling
heroin. See U.S.S.G. § 2L1.2(b)(1)(B). After a 3-point
reduction for acceptance of responsibility, Valdovinos’s total
recommended offense level was 17. Combined with a criminal
history category of II, this offense level produced a Guidelines
range of 27 to 33 months’ imprisonment.
Valdovinos objected to the felony drug-offense enhancement.
He noted that under the Guidelines, a “felony” is “any federal,
state, or local offense punishable by imprisonment for a term
exceeding one year.” U.S.S.G. § 2L1.2 cmt. n.2. Valdovinos
argued that because his guilty plea to the prior North Carolina
conviction was entered as part of an agreement that capped his
sentence at 12 months once the court accepted his plea, that
4
conviction was not punishable by more than one year in prison.
Consequently, he maintained, his prior conviction for selling
heroin did not constitute a felony under the Guidelines and so
could not serve as a predicate offense to enhance his federal
sentence for illegal reentry.
The district court rejected the argument. It recognized
that the plea agreement reduced Valdovinos’s prior North
Carolina sentence. The court found, however, that this did not
alter the fact that the offense was punishable by imprisonment
exceeding one year because the maximum statutory penalty of 16
months remained unchanged. The court therefore applied the
enhancement and sentenced Valdovinos to 27 months in prison.
This appeal followed.
II.
Valdovinos contends that the district court erred in
enhancing his sentence on the basis of his prior state
conviction. As he argued in the district court, Valdovinos
again claims that, due to his plea agreement, his North Carolina
conviction was not punishable by more than a year in prison and
therefore does not qualify as a felony under Section
2L1.2(b)(1)(B) of the Guidelines. We review de novo the
question whether a prior state conviction constitutes a
predicate felony conviction for purposes of a federal sentence
5
enhancement. United States v. Jones, 667 F.3d 477, 482 (4th
Cir. 2012).
A.
Our approach to determining whether a prior North Carolina
conviction was punishable by a prison term exceeding one year
(and thus constitutes a federal sentencing predicate) has
changed in recent years. We once answered that question by
considering “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). As a result, many defendants who, based on
their own criminal histories, could not possibly have been
sentenced to prison for more than a year were deemed to have
been convicted of predicate felonies and so sentenced to
enhanced federal prison terms. We faithfully followed that
precedent in numerous cases, including United States v. Simmons,
340 F. App’x 141 (4th Cir. 2009).
In 2010, however, the Supreme Court decided Carachuri-
Rosendo v. Holder, 560 U.S. 563 (2010). The Court held in
Carachuri that, for purposes of the Immigration and Nationality
Act, a prior conviction constitutes an “aggravated felony” –-
i.e., a crime for which the maximum term of imprisonment exceeds
one year –- only if the defendant was “actually convicted of a
crime that is itself punishable as a felony under federal law.”
6
Id. at 582. The Court explained that whether the defendant’s
conduct underlying his prior conviction hypothetically could
have received felony treatment is irrelevant. See id. at 576-
81. The critical question is simply whether he was convicted of
an offense punishable by more than one year in prison.
The Supreme Court then vacated our judgment in Simmons and
remanded the case to us for “further consideration in light of
Carachuri-Rosendo.” See 130 S. Ct. 3455 (2010). On remand, we
recognized that, although Carachuri arose in the immigration
context, its rationale undercut our use of “an imagined worst-
case offender” to calculate a defendant’s maximum term of
imprisonment for a prior conviction. United States v. Simmons,
649 F.3d 237, 249 (4th Cir. 2011) (en banc). Accordingly, we
held that a defendant’s prior North Carolina conviction was
punishable by imprisonment exceeding one year (and thus a
federal sentencing predicate) only if the particular defendant’s
crime of conviction was punishable under North Carolina law by a
prison term exceeding one year. Id.
Valdovinos contends that Carachuri and Simmons support his
argument that his prior conviction for selling heroin does not
constitute a felony under the Guidelines. In particular, he
seizes on the instruction in those cases that a court must “look
to the conviction itself as [its] starting place” when
considering whether a prior conviction qualifies as a federal
7
sentencing predicate. Carachuri, 560 U.S. at 576; accord
Simmons, 649 F.3d at 242. Valdovinos argues that because the
state court could not have imposed a sentence greater than 12
months once it accepted his guilty plea –- that is, once
Valdovinos was convicted of his drug offense –- this conviction
was not punishable by imprisonment exceeding one year.
Appellant’s Br. at 12-13. Accordingly, Valdovinos claims that
his prior North Carolina conviction is not a felony under
Carachuri and Simmons because “[t]here was no point when [his]
conviction exposed him to a sentence greater than one year’s
imprisonment.” Reply Br. at 8.
Valdovinos’s argument is clever, but unpersuasive. North
Carolina’s unique sentencing regime, not a plea agreement,
determines whether a defendant’s conviction is punishable by
imprisonment exceeding one year and so qualifies as a federal
sentencing predicate. Simmons, 649 F.3d at 240.
B.
North Carolina’s Structured Sentencing Act “creates felony
sentences strictly contingent on two factors: the designated
‘class of offense’ and the offender’s ‘prior record level.’”
Id. (quoting N.C. Gen. Stat. § 15A-1340.13(b)). The sentencing
judge calculates the offender’s prior record level by adding
together the points, assigned by the Act, for each of the
offender’s prior convictions. N.C. Gen. Stat. § 15A-1340.14(a).
8
The judge then 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). The judge must sentence the
defendant within the presumptive range unless the judge makes
written findings of aggravating or mitigating factors. Id.
§§ 15A-1340.13(e) & 15A-1340.16(c). And the judge may sentence
a defendant within the aggravated range only if the state
provides the defendant notice of its intent to prove aggravating
factors, and a jury finds such factors beyond a reasonable doubt
or the defendant pleads to their existence. Id. § 15A-1340.16
(a6). Once the judge selects the applicable range, the judge
must choose the defendant’s minimum sentence from within that
range; a separate statutory chart provides the corresponding
maximum term. Id. § 15A-1340.17(d).
Critically, North Carolina’s sentencing scheme is not 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.” Simmons, 649 F.3d at 244 (quotation marks and citation
omitted). Determining the maximum punishment for an offender’s
prior conviction, then, simply “requires examination of three
pieces of evidence: the offense class, the offender’s prior
9
record level, and the applicability of the aggravated sentencing
range.” Id. at 247, n.9.
In Simmons, based on these three pieces of evidence, the
Structured Sentencing Act authorized a maximum sentence of only
8 months’ community punishment (no imprisonment) for the
defendant’s prior conviction. Id. at 241. Because Simmons’s
prior offense was not punishable under North Carolina law by
more than one year in prison, it did not qualify as a felony
predicate for a federal sentence enhancement. Id. at 248.
In Valdovinos’s case, by contrast, the Structured
Sentencing Act authorized a maximum sentence of 16 months’
imprisonment for his prior conviction. That the sentence
ultimately imposed pursuant to his plea deal was 10 to 12
months’ imprisonment is irrelevant. See United States v.
Edmonds, 679 F.3d 169, 176 (4th Cir. 2012) (reaffirming that
“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),
vacated on other grounds, 133 S. Ct. 376, aff’d on remand, 700
F.3d 146 (4th Cir. 2012). Valdovinos’s North Carolina
conviction was punishable by imprisonment exceeding one year
based on his prior record level, offense class, and sentencing
range. It therefore qualifies as a federal sentencing
predicate.
10
Valdovinos’s contrary argument rests on a misreading of
Carachuri and Simmons. Those cases direct that an offender’s
conviction must serve as our “starting place” not because, as
Valdovinos suggests, the moment of conviction (i.e., the moment
the defendant enters his guilty plea) is a magical one. Rather,
it is because the critical question for purposes of a federal
sentence enhancement is whether the particular defendant’s prior
offense of conviction was itself punishable by imprisonment
exceeding one year. Carachuri, 560 U.S. at 576 & 582; Simmons,
649 F.3d at 243; see also U.S.S.G. § 2L1.2 cmt. n.2 (defining
“felony” as “any federal, state, or local offense punishable by
imprisonment for a term exceeding one year”) (emphasis added).
Undoubtedly, Valdovinos’s prior offense of conviction –- sale of
heroin -- was itself punishable by imprisonment for more than
one year.
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.” Simmons, 649 F.3d at 244 (quoting
Carachuri, 560 U.S. at 582). But we do not do so in holding
that North Carolina’s “carefully crafted sentencing scheme,” id.
at 249, not a negotiated plea agreement, determines whether
Valdovinos’s prior conviction qualifies as a federal sentencing
predicate. In looking to the Structured Sentencing Act to
11
establish Valdovinos’s maximum sentence, we consider only
Valdovinos’s own offense class and criminal history, and thus
attribute to him only the crime of which he was “actually
convicted.” Carachuri, 560 U.S. at 582 (emphasis omitted).
This is the approach mandated by Carachuri and Simmons.
III.
Nonetheless, Valdovinos contends that a plea agreement of
the sort he negotiated –- that binds the judge to a sentence
once the judge accepts the plea -- displaces North Carolina’s
Structured Sentencing Act and establishes the maximum punishment
for every defendant sentenced pursuant to such a deal. The
argument fails. Precedent offers no support for the outcome
Valdovinos seeks. In fact, that outcome is fundamentally at
odds with important principles animating our decision in Simmons
and North Carolina’s sentencing scheme.
A.
A negotiated plea agreement differs in critical respects
from a legislative mandate like the Structured Sentencing Act.
While a plea agreement reflects only the interests of the
prosecutor and individual defendant, the Act reflects “North
Carolina's judgment as to the seriousness of a North Carolina
crime.” Simmons, 649 F.3d at 249. And while, under a plea
agreement, a defendant’s sentence hinges on merely the ability
12
of the parties to reach a deal and the willingness of the
sentencing judge to accept that deal, the Structured Sentencing
Act ensures that objective, uniformly applicable factors
determine each offender’s maximum punishment.
Thus, to determine an offender’s maximum sentence, Simmons
instructs that in every case we look to the same three pieces of
evidence: “the offense class, the offender’s prior record
level, and the applicability of the aggravated sentencing
range.” Id. at 247 n.9. A plea agreement applies to just one
case. Simmons’s instruction ensures that offenders with similar
criminal backgrounds who commit similar crimes will be sentenced
to similar prison terms. Of course, an individual plea
agreement provides no similar assurance.
Moreover, in contrast to North Carolina’s mandatory
sentencing scheme, under which a judge may never “impose a
sentence that exceeds the top of the range set forth in the
Act,” id. at 244 (quotation marks and citation omitted), a plea
agreement’s recommended sentence is not the final word under
North Carolina law. This is so because the sentencing judge
remains free to reject the agreement.
Neither a defendant nor a prosecutor may “bind the State to
the dispensation of a particular sentence . . . until the trial
judge has approved of the proposed sentence.” State v. Marlow,
432 S.E.2d 275, 279 (N.C. 1993) (citation and alteration
13
omitted); see also N.C. Gen. Stat. § 15A-1023(b). And “the
prosecutor may rescind his offer of a proposed plea arrangement
at any time before it is consummated by actual entry of the
guilty plea and the acceptance and approval of the proposed
sentence by the trial judge.” Marlow, 432 S.E.2d at 279
(emphasis omitted). “A decision by the judge disapproving a
plea arrangement,” moreover, “is not subject to appeal.” N.C.
Gen. Stat. § 15A-1023(b). Accordingly, the state judge could
have rejected Valdovinos’s plea agreement and required a
sentence of up to 16 months in prison, the statutory maximum
under the Act.
Valdovinos protests that this argument “ignores the most
important procedural protection included in [the statute
governing his plea agreement]: the defendant’s right to withdraw
from the plea agreement and plead not guilty if the judge
rejects the agreed sentence.” Reply Br. at 5-6. Certainly, a
defendant has this right. The relevant North Carolina statute
provides:
Before accepting a plea pursuant to a plea arrangement
in which the prosecutor has agreed to recommend a
particular sentence, the judge must advise the parties
whether he approves the arrangement and will dispose
of the case accordingly. If the judge rejects the
arrangement, he must so inform the parties, refuse to
accept the defendant’s plea of guilty or no contest,
and advise the defendant personally that neither the
State nor the defendant is bound by the rejected
arrangement. The judge must advise the parties of the
14
reasons he rejected the arrangement and afford them an
opportunity to modify the arrangement accordingly.
N.C. Gen. Stat. § 15A-1023(b) (emphasis added). We cannot,
therefore, be sure what would have happened if the state judge
had rejected Valdovinos’s plea. Perhaps Valdovinos would have
withdrawn his plea, and perhaps a jury would have acquitted him
of selling heroin in North Carolina. But the fact remains that
Valdovinos, like countless other defendants, chose to plead
guilty under a plea agreement that allowed him to avoid trial
and its associated risk of a higher sentence than the agreement
offered. And he pleaded guilty to an offense that carried a
maximum sentence of 16 months in prison under North Carolina
law. His conviction thus constitutes a proper sentencing
predicate under the Guidelines.
B.
Valdovinos’s remaining arguments to the contrary are
similarly unconvincing.
First, he contends that just as North Carolina prosecutors
declined to pursue Simmons as an aggravated offender, Simmons,
649 F.3d at 245, so too they “declined to pursue [him] as a
felon” by agreeing to a sentence capped at 12 months in prison.
Appellant’s Br. at 17 (quotation marks omitted). Not so.
Valdovinos was charged with, and pleaded guilty to, a North
Carolina Class G felony offense. See N.C. Gen. Stat. § 14-1(4)
15
(defining felony as, inter alia, a crime “denominated as a
felony by statute”). That prosecutors agreed to a lower
sentence does not eliminate the fact that they did indeed
“pursue [him] as a felon.”
In a similar vein, Valdovinos claims that “the prosecutor
must have found the existence of mitigating circumstances in
order to agree to a sentence of less than one year.”
Appellant’s Br. at 17. But it is just as likely that the
prosecutor agreed to the lower sentence to avoid the time and
expense of trial. 2 And contrary to Valdovinos’s claim, it
matters not that his maximum sentence under the Structured
Sentencing Act would similarly have been 12 months if the
parties had “obtained a mitigated-range sentence” based on
judicial findings of mitigation rather than through plea
negotiations. Id. Because a North Carolina sentencing judge
“remain[s] free at all times to sentence [a defendant] to a
presumptive prison term” despite the existence of mitigating
factors, Valdovinos’s conviction would still have been
punishable by imprisonment exceeding one year and so would have
qualified as a sentencing predicate. United States v. Kerr, 737
F.3d 33, 38-39 (4th Cir. 2013).
2
Of course, the prosecutor knew that Valdovinos faced
immediate deportation upon his release from prison, a fact that
might also have played a role in sentencing negotiations.
16
Finally, contrary to his suggestion, Valdovinos had ample
notice of the consequences of his plea. Measuring his maximum
sentence by reference to the Structured Sentencing Act therefore
does not rob him of the benefits of that plea. This case does
not, for example, involve a defendant who negotiated a plea to a
lesser charge, only to have a later sentencing court impose an
enhancement on the basis of the defendant’s underlying conduct
or initial indictment on a greater charge. That approach might
unfairly deprive defendants of the benefits of their negotiated
pleas, because it is “unfair to impose a sentence enhancement as
if the defendant had pleaded guilty to [a sentencing predicate]”
when in fact he did not. Descamps v. United States, 133 S. Ct.
2276, 2289 (2013) (quotation mark and citation omitted).
Here, however, Valdovinos did plead guilty to a sentencing
predicate, i.e., a felony punishable by more than one year. Had
he wished to avoid a conviction punishable under North Carolina
law by imprisonment exceeding one year, he should have sought a
plea to a lesser crime. 3 Perhaps he did so, and perhaps the
prosecutor refused. Whatever the case, Valdovinos ultimately
3
North Carolina classifies felonies in descending order of
seriousness from Class A (most serious) through Class I (least
serious). See N.C. Gen. Stat. § 15A-1340.17(c). At the time of
Valdovinos’s conviction, a North Carolina Class H felony offense
carried a maximum (presumptive) sentence of only eight months in
prison for an offender with his criminal history. See N.C. Gen.
Stat. § 15A-1340.17 (version effective until November 30, 2009).
17
elected to plead guilty to an offense punishable under state law
by a maximum term of 16 months in prison. He knew this, or
should have known it, at the time of his conviction and so
cannot now claim that the district court unfairly attributed to
him this predicate offense.
IV.
For the foregoing reasons, we hold that North Carolina’s
legislatively mandated sentencing scheme, not a recommended
sentence hashed out in plea negotiations, determines whether an
offender’s prior North Carolina conviction was punishable by
more than a year in prison. Because Valdovinos’s offense of
conviction was indeed punishable by imprisonment exceeding one
year, it qualifies as a predicate felony under Section
2L1.2(b)(1)(B) of the Guidelines. We appreciate the fervor and
policy arguments of our friend in dissent. Indeed, we can agree
with many of the latter. What we cannot agree with is that
“application of relevant precedent” does not require the result
here. Carachuri and Simmons do just that. The judgment of the
district court is
AFFIRMED.
18
DAVIS, Senior Circuit Judge, dissenting:
The majority holds that a federal sentencing enhancement
should be applied under the illegal reentry guideline, U.S.S.G.
§ 2L1.2(b)(1)(B), whenever an offender’s rap sheet contains a
prior North Carolina conviction that, given his offense and
criminal history levels, could have resulted in a sentence of
incarceration exceeding one year. I would hold instead that such
an offense does not qualify as a predicate felony if, due to a
statutorily authorized, judicially-accepted, binding plea
agreement, the state sentencing judge is legally compelled to
impose a sentence of no more than one year. Put differently, and
consonant with our relevant circuit precedent, I would treat
such an offender as if the state court judge had found him
statutorily ineligible for a sentence of more than one year,
which of course was true once the judge accepted his guilty plea
and before imposing sentence. See infra pp. 32-36 (explaining
the operation of N.C. Gen. Stat. § 15A-1023(b)).
Our disagreement as to the outcome in this case stems, I
think, less over the content and application of relevant
precedent and more from a fundamental disagreement regarding our
role as arbiters of a flailing federal sentencing regime. Where,
as here, we have been presented with a choice in how to
interpret the interstices of federal sentencing law, and where
one choice would exacerbate the harmful effects of over-
19
incarceration that every cadre of social and political
scientists (as well as an ever-growing cohort of elected and
appointed officials, state and federal, as well as respected
members of the federal judiciary) has recognized as unjust and
inhumane, as well as expensive and ineffectual, this insight can
and should inform our analysis. I deeply regret the panel’s
failure to take advantage of the opportunity to do so here.
I.
First, some necessary and useful background.
A.
Over the latter half of the last century, enthusiasm for
incarceration pervaded crime reduction policy and the related
public discourse. The policy choices that resulted have created
an unparalleled rate of incarceration – nearly 2.23 million
people, or 1 out of every 100 adults, currently sit in an
American prison or jail - a marked departure from the historical
experience of the United States as well as the modern experience
of peer democracies. Dept. of Justice, Bureau of Justice
Statistics, L. Glaze & E. Herberman, Correctional Populations in
the United States, 2012, at 3 (2013),
http://www.bjs.gov/content/pub/pdf/cpus12.pdf. The United States
now holds the highest prison population rate in the world, over
5 to 10 times more than western European democracies. Int’l Ctr.
for Prison Studies, R. Walmsley, World Prison Population List 1-
20
3 (10th ed. 2013). Though it is home to only 5 percent of the
world’s population, our nation accounts for nearly 25 percent of
its prisoners. Congressional Research Service, S. Kirchhoff,
Economic Impacts of Prison Growth 9 (2010),
http://fas.org/sgp/crs/misc/R41177.pdf.
By all accounts, these “tough on crime” policies have been
an abject failure. A rapidly accumulating group of multi-
disciplinary research studies have come to the conclusion that
the rate of incarceration in the United States needs to be
significantly reduced, and both the executive and legislative
branches seem to agree. As a recent study prepared by the
research arm of the National Academy of Sciences put it, the
United States has “gone past the point where the numbers of
people in prison can be justified by social benefits,” and
arrived at a point where mass incarceration itself is a major
“source of injustice.” National Research Council, J. Travis, et
al., The Growth of Incarceration in the United States: Exploring
Causes and Consequences 9 (2014) (“National Research Council
Report”).
Justice Kennedy summarized it best ten years ago: “Our
resources are misspent, our punishments too severe, our
sentences too long.” Greenhouse, High Court Justice Supports Bar
Plan to Ease Sentencing, N.Y. Times, June 24, 2004, p. A14.
Consider the present state of our federal Bureau of Prisons:
21
more than half of its 200,000 inmates are incarcerated for drug-
related offenses, and only 6 percent for violent crimes. Dept.
of Justice, Bureau of Justice Statistics, E.A. Carson & D.
Golinelli, Prisoners in 2012: Trends in Admissions and Releases,
1991-2012, at 43 (2013),
http://www.bjs.gov/content/pub/pdf/p12tar9112.pdf. Almost half
of the inmates suffer from substance abuse disorders. Dept. of
Justice, Bureau of Justice Statistics, C. Mumola & J.
Karberg, Drug Use and Dependence, State and Federal Prisoners,
2004, at 1 (2006),
http://www.bjs.gov/content/pub/pdf/dudsfp04.pdf. And of those
released, 40 percent are rearrested or have their supervision
revoked within five years, frequently for minor violations of
the terms of their release. W. Rhodes, et al., Recidivism of
Offenders on Federal Community Supervision 8 (2012),
https://www.ncjrs.gov/pdffiles1/bjs/grants/241018.pdf.
Each inmate costs our system, and thus the taxpayers,
$29,291 annually. Congressional Research Service, N. James, The
Federal Prison Population Buildup: Overview, Policy Changes,
Issues, and Options 15 (2014),
http://fas.org/sgp/crs/misc/R42937.pdf. A Brookings Institute
project shows that direct corrections expenses total $80 billion
a year; total expenditure soars to more than $260 billion once
police, judicial, and legal services are included. The Hamilton
22
Project, M. Kearney, et al., Ten Economic Facts about Crime and
Incarceration in the United States 13 (2014),
http://www.brookings.edu/~/media/research/files/papers/2014/05/0
1%20crime%20facts/v8_thp_10crimefacts (“Hamilton Project
Report”).
Perhaps these numbers would be easier to accept if we had
conclusive data that severe punishment resulted in lower crime
rates. But there are no such data. “Through the 1990s and 2000s,
crime rates fell significantly, but the evidence indicates it is
unlikely that the rise in incarceration rates played a powerful
role in this trend.” National Research Council Report, at 340.
The data are, at best, mixed, and there is compelling evidence
that severe prison sentences actually make reoffending more
likely when offenders reenter society. Id. at 135-40, 150-52;
see also, e.g., Daniel S. Nagin, Deterrence in the Twenty—First
Century 201, 42 Crime and Justice 199, 201 (M. Tonry, ed. 2013)
(“[T]here is little [empirical] evidence that increases in the
length of already long prison sentences yield general deterrent
effects that are sufficiently large to justify their social and
economic costs.”); Anne Morrison Piehl & Bert Useem, Prisons, in
Crime and Public Policy, 542 (Joan Petersilia and James Q.
Wilson, eds., 2nd ed. 2011) (same).
23
B.
The heady weight of this experiment’s failure falls
disproportionately on our poor, our communities of color, and
excruciatingly so on young black men:
Those who are incarcerated in U.S. prisons come
largely from the most disadvantaged segments of the
population. They comprise mainly [of] minority men
under age 40, poorly educated, and often carrying
additional deficits of drug and alcohol addiction,
mental and physical illness, and a lack of work
preparation or experience. . . . The meaning and
consequences of this new reality cannot be separated
from issues of social inequality and the quality of
citizenship of the nation’s racial and ethnic
minorities.
National Research Council Report, at 2; see also Hamilton
Project Report, at 17 (“There is nearly a 70 percent chance that
an African-American man without a high school diploma will be
imprisoned by his mid-thirties.”). Such disparities make
official responses to crime and criminality a racially fraught
phenomenon. In 2011, blacks were incarcerated at nearly six
times, and Hispanics at three times, the rate for non-Hispanic
whites; the combination of those two groups accounted for no
less than 60 percent of the total prison population. Dept. of
Justice, Bureau of Justice Statistics, E.A. Carson & W. Sabol,
Prisoners in 2011, at 7-8; 26 (2012),
www.bjs.gov/content/pub/pdf/p11.pdf.
I should note that no respected researcher has suggested
that the disparities in imprisonment rates can be attributed to
24
disparities in criminality. Studies have shown that, controlling
for legally relevant differences, black defendants are more
likely to be confined before trial, more likely to be sentenced
to prison when non-prison sentences are available, and more
likely to receive longer sentences than their white
counterparts. See Michael Tonry, Punishing Race: A Continuing
American Dilemma 70-76 (2011); Cassia Spohn, Racial Disparities
In Prosecution, Sentencing, And Punishment 166-93, in The Oxford
Handbook of Ethnicity, Crime, and Immigration (S. Bucerius, et
al., ed. 2013). Findings in a recent study of the New York
County District Attorney’s Office by the highly-regarded Vera
Institute of Justice exemplify these nationwide realities: it
concluded that racial disparities manifested in nearly every
identifiable point of “significant prosecutorial discretion.”
See Vera Institute of Justice, B. Kutateladze & N. Andiloro,
Prosecution and Racial Justice in New York County 217,
http://www.vera.org/sites/default/files/resources/downloads/race
-and-prosecution-manhattan-technical.pdf (“Vera Institute
Study”).
As a result, according to a United States Sentencing
Commission (USSC) report, black male offenders receive sentences
20 percent longer than those imposed on white males convicted of
similar crimes. USSC, Report on the Continuing Impact of United
States v. Booker on Federal Sentencing 108 (2012). The truth is
25
that “once they’re in [the] system, people of color often face
harsher punishments than their peers”; as Attorney General Eric
G. Holder recently stated, “[t]his isn’t just unacceptable – it
is shameful[,] unworthy of our great country, and our great
legal tradition.” Eric G. Holder, Attorney General, Remarks at
Annual Meeting of the American Bar Association’s House of
Delegates (Aug. 12, 2013), in Justice News,
http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-
130812.html (“Holder Speech at ABA”) (saved as ECF opinion
attachment).
C.
The dangers of over-incarceration also present themselves
in the immigration context. Approximately 21,000 inmates are
currently serving sentences for immigration-related offenses in
the federal Bureau of Prisons. Federal Bureau of Prisons, Inmate
Statistics: Offenses,
http://www.bop.gov/about/statistics/statistics_inmate_offenses.j
sp (last updated June 28, 2014). This sum reflects a
staggering 900 percent increase in admission since 1994; in
fact, immigration prosecutions now make up the single largest
category of federal cases annually. Dept. of Justice, Bureau of
Justice Statistics, M. Motivans, Federal Criminal Justice
Trends, 2003, at 48 (2006),
http://www.bjs.gov/content/pub/pdf/fcjt03.pdf; Exec. Office for
26
U.S. Attorneys, Dep’t of Justice, United States Attorneys’
Annual Statistical Report: Fiscal Year 2012, at 10 (2012).
Immigration cases are processed in a manner bordering on
mechanical. Prosecutorial discretion is almost unheard of: less
than 1 percent of immigration matters referred to U.S. Attorneys
were declined for further prosecution. Dept. of Justice, Bureau
of Justice Statistics, M. Motivans, Immigration Offenders in the
Federal Justice System, 2010, at 18 (2013),
http://www.bjs.gov/content/pub/pdf/iofjs10.pdf. Over 95 percent
of immigration defendants plead guilty; in the Fourth Circuit,
this figure is 98.6 percent. Id. at 8; USSC, Statistical
Information Packet, Fourth Circuit, Fiscal Year 2013, at 8
(2013. The median case processing time for such cases, from
inception until termination in district court, is approximately
120 days. Motivans, Immigration Offenders, at 25.
For those lacking documentation, disproportionate
sentencing is still another cause for concern. Recent literature
has indicated that one’s immigration status – in addition to
one’s race – becomes fodder for disparate treatment at the
sentencing stage. See Michael T. Light, The New Face of Legal
Inequality: Noncitizens and the Long-Term Trends in Sentencing
Disparities Across U.S. District Courts, 1992-2009, 48 L. & Soc.
Rev. 447 (2014); see also Jeff Yates, et al., A War on Drugs or
a War on Immigrants? Expanding the Definition of “Drug
27
Trafficking” in Determining Aggravated Felon Status for
Noncitizens, 64 Md. L. Rev. 875, 880-81 (2005). According to one
study, non-citizens are over three times more likely to be
incarcerated compared to similarly situated citizens. Light, at
465. And the length of non-citizens’ prison terms were adversely
affected, too: they were 8.5 percent longer than their
counterparts, suggesting “a broader pattern of punitiveness
against non-U.S. citizens, culminating in more incarceration and
longer prison terms.” Id. at 466; 470.
All told, almost one-quarter of the Bureau of Prisons
population is composed of non-citizens – over 50,000 people -
and that has been the case since at least 2011. The overwhelming
majority serves time for drug convictions (44%), illegal reentry
(33%), illegal entry (6%), or some combination thereof, and the
average sentence for this population is approximately 85 months.
Bureau of Prisons Office of Public Affairs, Information on
Sentenced Inmates by U.S. Citizen and non-U.S. Citizen as of
Sept. 2013 (July 2014) (saved as ECF opinion attachment). * Of
course, common practice for most of these non-citizen criminals
is that they are passed along to be civilly deported once their
federal sentences come to an end.
*
These data were provided directly to me, upon request, by
the Bureau of Prisons.
28
II.
Any reader who has come this far has my deep appreciation.
Let’s examine legal doctrine.
It is against the above backdrop that we are called upon to
decide the appeal of Mr. Jose Ramon Solis Valdovinos.
The facts governing Mr. Valdovinos’s appeal are not
complicated: we know that in July 2009, he pled guilty in state
court to four counts of selling heroin over a four-week period
during the fall of 2008. Had he chosen to proceed to trial and,
upon conviction, to sentencing without a binding plea agreement,
Mr. Valdovinos would have faced a maximum sentence of sixteen
months. N.C. Gen. Stat. § 15A-1340.17(c) & (d) (2008). But we
also know that, upon his actual conviction, the state sentencing
court ceased to have the option of sentencing him in that range.
Because the state prosecutor had offered a plea agreement, and
because the state judge unconditionally approved its terms,
including the binding provision to impose a sentence of no more
than twelve months, the court could only sentence Mr. Valdovinos
to a determinate range of ten to twelve months’ imprisonment.
J.A. 80. And so it did. Id.
The underlying legal issue is also straightforward. Though
we are guided by Supreme Court holdings in Carachuri-Rosendo v.
Holder, 560 U.S. 563 (2010), and United States v. Rodriquez, 553
U.S. 377 (2008), as well as our own precedent in Simmons and its
29
progeny, see infra, my colleagues and I are in agreement that
this case presents a novel issue of federal sentencing law, one
that is posed only by virtue of the special circumstances
presented by prior convictions under North Carolina’s Structured
Sentencing Act and obtained pursuant to a related state statute
authorizing a certain kind of plea agreement. The particular
question is: which characteristic of Mr. Valdovinos’s 2009 North
Carolina conviction, (1) the terms of his judicially-accepted,
and therefore statutorily-binding, non-felony (for federal law
purposes) sentence, imposed by virtue of a duly-negotiated
binding plea agreement, or (2) the sentence that could have been
imposed on a defendant with his offense class and criminal
history category who goes to trial or pleads guilty without the
benefit of a binding plea agreement, should govern the analysis
of whether he has committed a prior “felony . . . offense” for
purposes of § 2L1.2(b)(1)(B), the federal sentencing enhancement
applicable to those convicted of illegal reentry after
deportation.
The majority chooses the latter option, largely on the
ground that the “principles animating [the] decision in
Simmons,” ante, at 12, support such a conclusion. Perhaps so. I
choose the former, and my reasoning is as follows: (1) it is
wholly consistent with the lessons of Carachuri-Rosendo,
Rodriquez, and Simmons, and their “animating principles,” not
30
least among them a due regard for federalism interests, and (2)
in the absence of precedent mandating a result, our decision
ought to be grounded in an informed understanding of the
realities of the existing state and federal sentencing regimes
and the consequences that our rulings may bring to bear.
A.
Let us begin with the Supreme Court’s instructions in
Carachuri-Rosendo and Rodriquez. Both cases involved the use of
a defendant’s prior state conviction to justify the later
imposition of enhanced penalties under federal law, and both
teach a single lesson: “[W]e are to look to the conviction
itself as our starting place, not to what might have or could
have been charged.” Carachuri-Rosendo, 560 U.S. at 576 (emphasis
added). In Carachuri-Rosendo, the Court eschewed the so-called
“hypothetical” approach, which would have permitted federal law
to treat the defendant as having committed an aggravated felony
if, hypothetically, his previous state court proceedings could
have treated him as such. This method, according to the Court,
inappropriately ignored both “the conviction (the relevant
statutory hook), and the conduct actually punished by the state
offense.” Id. at 580.
We later observed, in United States v. Simmons, that a
state court finding could “set the maximum term of imprisonment,
but only when the finding [of recidivism] is a part of the
31
record of conviction.” 649 F.3d 237, 243 (4th Cir. 2011) (en
banc) (quoting Carachuri-Rosendo, 560 U.S. at 577, n.12)
(emphasis added). And “in those cases in which the records that
may properly be consulted do not show that the defendant faced
the possibility of a recidivist enhancement, it may well be that
the Government will be precluded from establishing that a
conviction was for a qualifying offense.” Rodriquez, 553 U.S. at
389. Use of “facts outside the record of conviction . . . cannot
and does not” substantiate a conclusion to the contrary.
Simmons, 649 F.3d at 244 (internal citations omitted).
No one doubts that a sentence of twelve months does not
qualify as a felony sentence under federal law. (The majority
opinion elides Mr. Valdovinos’s careful differentiation between
the definitions of “felony” for state and federal purposes, as
it elides, as well, his differentiation between “felons” and
“aggravated offenders.” Ante, at 15-16.) If we look, as Simmons
instructs, to Mr. Valdovinos’s record of conviction, it is clear
that his conviction was not “punishable by imprisonment for a
term exceeding one year” as is required by the Sentencing
Guidelines. U.S.S.G. § 2L1.2 cmt. n.2. According to the state
court judgment, the court “impose[d] the prison term pursuant to
a plea arrangement as to sentence under Article 58 of G.S.
Chapter 15A.” J.A. 80. The court had accepted Mr. Valdovinos’s
guilty plea, and, under North Carolina law, it was obligated to
32
impose the sentence agreed to by the prosecutor and defendant,
which, in this case, was ten to twelve months.
Mr. Valdovinos’s appeal underscores a crucial
characteristic of the plea negotiation system as enacted by the
North Carolina legislature: once the plea agreement is
“approved,” Article 58 of G.S. Chapter 15A “establish[es the]
maximum term of imprisonment” that can legally be imposed on a
particular defendant. Simmons, 649 F.3d at 244. Specifically,
under North Carolina law,
Before accepting a plea pursuant to a plea arrangement
in which the prosecutor has agreed to recommend a
particular sentence, the judge must advise the parties
whether he approves the arrangement and will dispose
of the case accordingly. If the judge rejects the
arrangement, he must so inform the parties, refuse to
accept the defendant’s plea of guilty or no contest,
and advise the defendant personally that neither the
State nor the defendant is bound by the rejected
arrangement.
N.C. Gen. Stat. § 15A-1023(b) (emphasis added). Indeed, that is
the entire point of the system: once a judge accepts a 1023(b)
guilty plea, she is bound by the terms of the corresponding plea
agreement, and she may not go on to rewrite its terms in a
manner she sees fit. Cf. Freeman v. United States, 131 S. Ct.
2685, 2696 (2011) (Sotomayor, J., concurring) (observing that
the “very purpose” of Fed. R. Crim. P. 11(c)(1)(C), the federal
analogue of a North Carolina 1023(b) plea agreement, is “to bind
the district court and allow the Government and the defendant to
33
determine what sentence he will receive.”). In other words, the
North Carolina judge was not “guide[d]” by the terms of the plea
agreement; rather, the specific sentence is “mandate[d]” by
North Carolina statutory law. Cf. Simmons, 649 F.3d at 244.
If the above language sounds familiar, this is because we
pointed to this precise characteristic to support our conclusion
in Simmons that the North Carolina Structured Sentencing Act
should inform our federal predicate felony analysis. There, we
observed that the North Carolina legislature had set forth a
rigid procedure that made sentencing ranges “strictly
contingent” on a defendant’s offense class and prior record
level, and expressly limited sentences above that range “unless
the judge makes written findings” on the record. Id. at 240.
Unlike the federal Guidelines system, under which the sentencing
judge could impose a sentence outside of the suggested range, a
North Carolina judge lacked such discretion. To read into a
state conviction a finding of aggravation that no judge ever
made, and that (as in the instant case) is beyond the legal
authority of the sentencing judge to make at all, is to use
“facts outside the record of conviction” in a manner barred by
Carachuri-Rosendo. Id. at 244-45.
Though the government boldly takes the position that some
enactments of the North Carolina legislature are more important
than others, this argument is unavailing. Through Article 58 of
34
G.S. Chapter 15A, the North Carolina legislature has implemented
a rigid procedure that makes sentencing ranges “strictly
contingent” on the agreed-upon plea agreement - and in fact
allows for no option for the judge to sentence a defendant
outside that range. Mr. Valdovinos’s “record of conviction”
makes clear that the maximum possible term of imprisonment was
the range set forth in the plea agreement, and, as to this
“conviction itself,” the state court was compelled to impose a
sentence no greater than one year. We should take Carachuri-
Rosendo and Simmons at their word and decline the government’s
invitation to pick and choose among subsisting enactments of the
North Carolina legislature, assigning to such enactments tiers
of importance or creating statutory hierarchies that have no
basis whatsoever in federal sentencing law.
The majority disagrees. By the “conviction itself,” it
hastens to explain, Simmons actually meant the “offense of
conviction” itself, and by the “offense of conviction” itself,
it really meant an offender’s maximum punishment given his
offense class and criminal history point. My friends contend
that Mr. Valdovinos’s argument does not make sense because it
imparts undue importance to the “moment of conviction,” which is
not, after all, some sort of “magical” moment. Ante, at 11.
The “moment of conviction” may not be magical (little if
anything in our broken criminal justice system is,
35
notwithstanding its “considerable virtues” extolled by some, see
Hon. J. Harvie Wilkinson III, In Defense of American Criminal
Justice, 67 Vand. L. Rev. 1099, 1172 (2014)), but it certainly
is a logical one, an apt benchmark to apply in the course of
exercising our discretion to make choices about mass and
prolonged incarceration. And though it is painfully obvious to
say so, there simply is no “conviction itself,” see Carachuri-
Rosendo, 560 U.S. at 576, until the “moment” of conviction, and
there can be no “record of conviction,” see Simmons, 649 F.3d at
243, until the judge “approves” the plea agreement and accepts
the guilty plea. “Any bargain between the parties is contingent
until the court accepts the agreement.” Freeman, 131 S. Ct. at
2692 (plurality op.); see also id., 131 S. Ct. at 2696
(Sotomayor, J., concurring) (treating as important, if not
“magical,” “the moment of sentencing”). Unless and until the
guilty plea is accepted, the state of affairs surrounding a
North Carolina defendant with the benefit of a 1023(b) plea
agreement is speculative at best – and certainly just as
“hypothetical” as the circumstances, addressed in Simmons and
Rodriquez, of a person who stands charged with offense conduct
that could have exposed him to an aggravated sentencing range
but the prosecutor and/or judge declined to pursue that course.
If hypotheticals are inoperative in the latter circumstances,
then they should be inoperative in the former.
36
* * * * *
The critical point here is that neither the holding nor the
reasoning of Simmons mandates the proper resolution of this
case. Despite the protestation from the majority to the
contrary, ante, at 18, Carachuri-Rosendo and Simmons are not
“controlling” here, in that their “animating principles” do not
compel the result reached by the majority. (Of course, on the
other hand, there is a reason why our opinions are labeled
“majority” and “dissent:” they have the votes, but not the
better approach or the better arguments.)
Whether or not the majority will acknowledge it, we have a
choice in fashioning our rule of decision here, as appellate
judges sometimes do. What might inform our choice in this
instance?
B.
How about the important federalism interests at stake in
this case?
That is, in the course of offering the plea agreement at
issue, the state of North Carolina evaluated Mr. Valdovinos’s
background and the circumstances of the case and determined that
he deserved a sentence of ten to twelve months - or, more aptly
put, that he did not deserve a sentence of any greater duration
than twelve months. This decision was made by the state’s local
prosecutors, whom we presume to have their fingers on the pulse
37
of community concerns and to act with genuine regard for
community mores. Their decision-making authority is of course
validated by the state Constitution and statutes, as well as its
corresponding rules of procedure. Today’s holding goes far to
derogate the discretion and independence exercised by state
officials to enforce their own laws.
Both Carachuri-Rosendo and Simmons expressed concern that
applying hypothetical sentencing enhancements to prior state
convictions triggers significant federalism concerns. Carachuri-
Rosendo emphasized that the federal sentencing regime should not
“denigrate the independent judgment of state prosecutors to
execute the laws” of their states. 560 U.S. at 580. And we have
reiterated that when a state prosecutor has “declined to pursue”
a defendant as an aggravated offender, we ought not to “second-
guess” her judgment. Simmons, 649 at 249-50.
The same logic applies here – in fact, even more so,
insofar as it involves the independent but collective exercise
of the combined constitutional authority of both the state
prosecutor and the state judge, each expressing the community’s
judgment that Mr. Valdovinos is not among the most dangerous and
incorrigible offenders deserving of the full retributive weight
allowed under state law.
For any number of reasons, be it pragmatism, compassion, or
otherwise, the state prosecutor (and state judge) weighed the
38
recourses available to her and opted to agree to an
incarceration term of no more than one year. What today’s
holding says is that that doesn’t matter: federal courts can and
will “second-guess” this judgment. Even though a state
prosecutor (and state judge) chose a shorter, more humane term
of imprisonment, we are urged to disregard her decision because
it does not comport with the policy choice of one United States
Attorney’s Office as to its view of state sentencing values.
The government concedes, as it must, that “a guilty plea
entered into [sic] under § 15A-1023(b) restricts a sentencing
judge’s discretion,” Gov. Br. 19, but the majority concludes
that this does not matter. It points to the fact that each plea
agreement is individualized, hinging on “the ability of the
parties to reach a deal,” ante, at 12-13. And it emphasizes the
fact that Mr. Valdovinos “chose to plead guilty under a plea
agreement that allowed him to avoid trial,” ante, at 15.
Manifestly, this describes every plea agreement, all of which
also “allow” the prosecutor to “avoid trial.” The majority’s
reasoning is aimed at identifying a seeming contrast, I suppose,
to the Structured Sentencing Act’s more wide-lensed “reflect[ion
of] North Carolina’s judgment as to the seriousness of a North
Carolina crime.” Ante, at 12. But its reasoning proves too much.
First, the majority’s assertion that “a plea agreement
reflects only the interests of the prosecutor and individual
39
defendant,” id., would surely strike many as shockingly ill-
informed. Every federal district judge in this circuit knows
that plea agreements in the federal system are subjected to
rigorous review for conformity to broad policies by multiple
levels of supervisory prosecutors, whose initials customarily
appear in the margins of the written agreements. Cf. Vera
Institute Study, at 115-16 (describing Manhattan District
Attorney’s guidelines for plea agreement offers). There is no
reason to suppose, as the majority opinion seems to suggest,
that conscientious prosecutors in a jurisdiction as large as
Mecklenburg County, North Carolina are any less rigorous in
fulfilling their responsibilities to the public. In my view,
such discretionary exercises of state authority are equally
instructive – if not more so – of “North Carolina’s judgment as
to the seriousness” of a criminal offense committed within its
jurisdiction and in violation of its own law.
Indeed, the fact that the North Carolina legislature has
instituted such a plea agreement system in the first instance
belies the majority’s dismissive approach. As every prosecutor
and criminal practitioner well knows, a plea agreement that
binds a judge to a particular sentence is a horse of a different
color, for most judges will not routinely bind themselves. That
the special procedure is embodied in a duly-enacted state
statute undoubtedly heightens the respect we owe it. I simply
40
fail to see how the particularized evaluation of the need for
just punishment by a local prosecutor (an agent of a duly-
elected, Constitutional officer of the sovereign State of North
Carolina), under the authority of state statutory law, of the
actual facts at issue, and agreed to by a state judge (likewise,
a duly-elected, Constitutional officer of the sovereign State of
North Carolina), can be dismissed so blithely.
And while it is certainly true that Mr. Valdovinos “chose
to plead guilty under a plea agreement that allowed him to avoid
trial[,]” ante, at 15, the benefits afforded to the prosecutor
when a plea agreement is accepted are equally individualized and
equally critical to the administration of her office’s duties.
“[T]he reality [is] that criminal justice today is for the most
part a system of pleas, not a system of trials”. Lafler v.
Cooper, 132 S. Ct. 1376, 1388 (2012); see also id. (over 97% of
federal convictions and 94% of state convictions are a result of
guilty pleas); USSC, Statistical Information Packet, Fourth
Circuit, Fiscal Year 2013, at 8 (2013) (guilty pleas resolve
98.6% of immigration cases in the Fourth Circuit). It is true
that the presiding prosecutor offers plea agreements for any
number of reasons: a weak case, a sympathetic defendant, the
expense of trial, and on and on. As a matter of course, however,
she will only reach a plea agreement if it is in the state’s
interest (i.e., the community’s interest) to do so.
41
Actually, the majority’s ostensible distinction between the
sentencing act and the plea agreement statute seems to distract
more than it informs. There is no doubt that any plea
negotiation system is, by its very nature, flexible and
individualized, grounded in real world intentions and
consequences. But there is also no doubt that it plays a crucial
role in North Carolina’s sentencing scheme. Though its
instructions cannot be fashioned into a neat table or grid, it
strictly and steadfastly “mandates [the] specific sentences”
available to the state court when the court accepts a
prosecutor’s recommended sentence for any given conviction. Cf.
Simmons, 649 F.3d at 244. At least according to Simmons, that is
what should carry the day.
III.
My point thus far has been that the lessons of Carachuri-
Rosendo and Rodriquez are consistent with acceptance of Mr.
Valdovinos’s argument, and that the principles animating Simmons
remain equally at play in this case, as well. In other words, as
is common in cases involving the intricacies of federal
sentencing law, our traditional tools do not provide us with a
clearly mandated holding. I do not believe that my good
colleagues in the majority dispute this; rather, where we differ
is what we choose to do with this jurisprudential license.
42
The truly baffling question is why, when presented with a
choice in the interpretation of federal sentencing law, any
federal appellate judge acting in good faith (as my friends in
the majority indisputably are) would choose to exacerbate,
rather than mitigate, the harmful effects of our nation’s
“throw-away-the-key” approach to incarceration?
Now, more than ever, every measure of political and social
scientists has recognized that our nation’s mass incarceration
strategies have been a “moral, legal, social, and economic
disaster” that “cannot end soon enough.” Editorial, End Mass
Incarceration Now, N.Y. Times, May 24, 2014, p. SR10. In
February of this year, the U.S. House of Representatives renewed
the bipartisan task force it created to review the federal
criminal code and the trend toward “over-criminalization;”
groups who have testified in support of reform include the
American Bar Association, the Heritage Foundation, and, just
this past month, the Judicial Conference of the United States
and the Sentencing Commission. See Hearings Before the Over-
Criminalization Task Force of 2013 of the Committee on the
Judiciary, House of Representatives (June 14, 2013) (Testimony
of William N. Shepherd, American Bar Association; John G.
Malcolm, The Heritage Foundation); id. (Jul. 11, 2014)
(Testimony of Hon. Irene M. Keeley, Judicial Conference of the
United States; Hon. Patti B. Saris, USSC).
43
The consensus for reform includes, not least of all, the
Attorney General himself, who has concluded that “far too many
Americans [are] serving too much time in too many prisons – and
beyond the point of serving any good law enforcement reason.”
Eric G. Holder, Attorney General, Remarks at Fourth Meeting of
Ministers Responsible for Public Security in the Americas (Nov.
21, 2013), in Justice News,
http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-
131121.html (saved as ECF opinion attachment). The Department of
Justice has directed federal prosecutors to exercise their
discretion toward minimizing the number of inmates in federal
prisons for low-level drug crimes and has urged Congress to
enact changes in the federal sentencing guidelines to that
effect. See U.S. Department of Justice, Smart on Crime:
Reforming the Criminal Justice System for the 21st Century
(2013).
In fact, even as I write this, the United States Sentencing
Commission has issued a momentous, unanimous decision providing
that its previously-approved Guidelines amendment reducing
federal drug base offense levels by two would be retroactively
applied. While Congress retains the authority to reject this
twenty-first century innovation before the end of this year, it
seems highly unlikely that it will do so, for all the reasons
discussed herein. It is, indeed, nearly impossible to keep up
44
with the groundswell of support evidencing our long-overdue
recognition that federal sentencing law and policy are in
desperate need of repair.
All of this gives me pause. We federal judges have invested
no uncertain effort into crafting our tools of legal analysis,
and on many occasions those traditional tools reveal a true and
worthy answer. But at a point where actors from all sides of the
political spectrum have concluded that federal sentencing law
and policies have gone off the rails, at a point where even the
Executive Branch has recognized that “widespread incarceration
at the federal, state, and local levels is both ineffective and
unsustainable,” see Holder Speech at ABA, I would think that our
analytical process ought not to blink at these very real
concerns.
The majority opinion declines to examine Mr. Valdovinos’s
case through this lens, clinging instead to the myopic notion
that only our ostensibly “legal” analytical tools dictate the
holding in his case. I understand, in some instances, the need
for formalist thought and decision-making. But in the context of
federal sentencing, and in the face of mounting evidence of the
societal costs of this sort of legal reasoning, I cannot condone
or join in it.
I suppose, in truth, this case is really United States v.
Kerr, 737 F.3d 33 (4th Cir. 2013), redux. (Kerr earns a single
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citation in the majority opinion, see ante, at 16, but it looms,
ominously, over this appeal.) Just as the North Carolina state
judge there had discretion to sentence in the presumptive range
(but did not), so too, here, the North Carolina state judge had
discretion to reject the binding plea agreement (but did not).
In each instance, reliance on an inchoate, hypothetical state of
affairs to lengthen a federal sentence runs into the teeth of
the relevant circuit precedents. I dissented in Kerr and I do so
here. Formalist, counter-factual responses to real world events
hold no comfort for me when the subject is federal sentencing.
IV.
I am reminded of the following prudent instruction from the
National Academy of Sciences:
The decision to deprive another human being of his or
her liberty is, at root, anchored in beliefs about the
just relationship between the individual and society
and the role of criminal sanctions in preserving the
social compact. Thus, good justice policy is
necessarily based on a combination of empirical
research and explicit normative commitments.
National Research Council Report, at 341. Where there are
choices that can be made that would permit progress in the
individual case without doing harm to the transcendent legal
infrastructure rooted in deductive reasoning, we can and should
choose that path.
Here, in a tiny corner of the chaotic morass that is
federal sentencing law, Mr. Valdovinos has offered us a measured
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approach, to a novel issue of federal sentencing law, that
adheres to Supreme Court and our relevant circuit precedents and
is consistent with our values. If accepted by this panel, his
argument, which is surely more than merely “clever”, see ante,
at 8, would affect a tiny number of federal cases drawing legal
relevance from North Carolina’s historical (and now superseded)
sentencing regime. And Mr. Valdovinos’s sentence in this case
likely would be reduced to a bottom guideline of 15 months,
instead of the bottom guideline sentence he received, 27 months.
He’d soon be on his way home to Mexico, if not already arrived.
That the majority declines the opportunity to decide this
case on the foundations discussed herein is regrettable, a
choice that not only ignores the growing wisdom informed by
widespread acknowledgement of our unjust federal sentencing
jurisprudence, but actually hinders its progress. Would that my
friends could see that it’s a new century, complete with a host
of profound and valuable insights at our avail. I discern no
compelling reason why, in the performance of our adjudicative
responsibilities, which every member of the panel has
unfailingly carried out to the best of our ability in this case
and in full accordance with our solemn oath to “administer
justice,” 28 U.S.C. § 453, we ought not to draw on these
insights.
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One of them is that sometimes, in our shared quest for
justice under law, it requires so little of us to achieve so
much.
Respectfully, I dissent.
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