United States v. Cornette

• Decision Date: 30 July 2019
• Docket Number: No. 18-6041,18-6041
• Citation: 932 F.3d 204
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Randall CORNETTE, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

932 F.3d 204

UNITED STATES of America, Plaintiff - Appellee,

v.Randall CORNETTE, Defendant - Appellant.

No. 18-6041

United States Court of Appeals, Fourth Circuit.

Argued: March 19, 2019

Decided: July 30, 2019

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Caryn Devins, Research & Writing Specialist, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before AGEE and FLOYD, Circuit Judges, and DUNCAN, Senior Circuit Judge.

Reversed and remanded by published opinion. Judge Floyd wrote the opinion in which Judge Agee and Senior Judge Duncan joined.

FLOYD, Circuit Judge:

Appellant Randall Cornette was sentenced as an armed career criminal because of certain predicate state convictions that the district court considered to be "violent felonies" under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Cornette now contends that in light of the Supreme Court’s decision in Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), he no longer has the requisite number of predicate offenses for the ACCA’s sentencing enhancement. In the unique context of the facts presented, we agree.

I.

Cornette pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) pursuant to a written plea agreement with an appeal waiver. Under 18 U.S.C. § 924(a)(2), this conviction carries a maximum prison sentence of ten years. However, the presentence report (PSR) designated the following predicate "violent felony" convictions under the ACCA: (1) a 1976 Georgia felony burglary; (2) a 1979 North Carolina breaking-and-entering; (3) a 1986 North Carolina felony possession with intent to manufacture/sell/deliver schedule II controlled substance and felony sell/deliver schedule II controlled substance; and (4) a 1989 North Carolina felony breaking and entering. Based on these convictions, the district court determined that Cornette was an armed career criminal under the ACCA and sentenced him to 220 months of imprisonment.

Cornette did not challenge the ACCA enhancement at his initial sentencing, although he appealed the district court’s judgment. We vacated the sentence because the district court procedurally erred in failing to adequately explain Cornette’s sentence. United States v. Cornette , 396 F. App'x 8, 8 (4th Cir. 2010). On remand, Cornette challenged his ACCA enhancement but withdrew the challenge prior to resentencing. On resentencing, the district court once again sentenced Cornette to 220 months imprisonment. A review of that resentencing reveals that the district court did not specify whether it relied on the ACCA’s enumerated clause, which includes "burglary" as a qualifying violent felony, or the residual clause in finding that Cornette qualified for the ACCA enhancement.

In 2012, Cornette filed his first motion under 28 U.S.C. § 2255 alleging ineffective assistance of counsel. The district court denied Cornette’s motion and denied a certificate of appealability. After the Supreme Court’s decision in Johnson ruling the residual clause of the ACCA void for vagueness, Cornette filed a second § 2255 motion arguing that he was no longer an armed career criminal. The district court dismissed this as an unauthorized second and successive § 2255. We granted a motion authorizing Cornette to file a second and successive § 2255. Cornette then filed a § 2255 motion, once again arguing that he no longer qualified as an armed career criminal under Johnson because (1) his 1976 Georgia burglary conviction no longer qualified as a predicate offense for ACCA purposes under the remaining force or enumerated clauses of ACCA and (2) his North Carolina controlled substance convictions did not qualify as ACCA predicates in light of our decisions in United States v. Newbold , 791 F.3d 455 (4th Cir. 2015), and United States v. Simmons , 649 F.3d 237 (4th Cir. 2011) (en banc).

The district court denied Cornette’s motion, this time on the merits, finding that Cornette’s sentence was proper because his Georgia burglary convictions met the elements of generic burglary under § 924(e)(2)(B)(ii). This appeal followed.

II.

Whether an offense constitutes a "violent felony" under the ACCA is a question of law that we review de novo. See United States v. White , 571 F.3d 365, 367 (4th Cir. 2009).

III.

We begin with an overview of the post- Johnson ACCA landscape. Second, we address why the appeal waiver in Cornette’s plea agreement does not bar us from reaching the merits of his ACCA claims. Third, we determine that Cornette’s 1976 Georgia burglary conviction does not qualify as a violent crime under the ACCA. Finally, we hold that Cornette’s North Carolina controlled substance convictions do not qualify as serious drug offenses under the ACCA. Accordingly, we grant Cornette’s § 2255 motion and remand for resentencing.

A.

Under the ACCA, a person who is convicted of being a felon in possession of a firearm and who "has three previous convictions ... for a violent felony or a serious drug offense ... committed on occasions different from one another ... shall be ... imprisoned not less than fifteen years[.]" 18 U.S.C. § 924(e)(1). The statute defines "violent felony" as:

any crime punishable by imprisonment for a term exceeding one year ... that ... (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]

18 U.S.C. § 924(e)(2)(B). The first part of subsection (ii) is referred to as the "enumerated offenses" clause, while the phrase "otherwise involves conduct that presents a serious potential risk of physical injury to another" is known as the "residual clause." Johnson , 135 S. Ct. at 2555–57. In Johnson , the Supreme Court held that the residual clause was unconstitutionally void for vagueness but that its "decision [did] not call into question application of the [ACCA] to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony." Id. at 2563.

In Welch v. United States , the Supreme Court held that Johnson was a substantive rule that applied retroactively on collateral review, as it "narrow[ed] the scope of [the ACCA] by interpreting its terms," and was also a "constitutional determination[ ] that place[d] particular conduct or persons covered by the statute beyond the State’s power to punish." ––– U.S. ––––, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016) (internal citation and quotation marks omitted). Welch made clear that the residual clause of the ACCA "can no longer mandate or authorize any sentence," and that the substantive rule announced in Johnson "change[d] the scope of the underlying criminal proscription" because there was a "significant risk that a defendant stands convicted of an act that the law does not make criminal." Id. at 1265–66 (internal citation and quotation marks omitted).

The statutory landscape as it stands today is that a defendant’s prior conviction can still qualify as a "violent felony" only under the force clause or the enumerated clause of the ACCA. The record of Cornette’s sentencing is unclear as to which clause of the ACCA—or even what predicate convictions—the district court relied upon in sentencing him. That is, in announcing its original sentence, the sentencing court stated only that it overruled all of Cornette’s objections to the PSR and determined that the final offense level of 32 was "correct as stated in the Presentence Investigation Report and adopted by the Court." J.A. 28. Upon remand and resentencing, the sentencing court stated only that the total offense level of 32 and the criminal history category of VI made the applicable guideline range 210 to 262 months. J.A. 54. There was no discussion of any of the ACCA’s clauses in either sentencing.

The government contends that the record does not establish that Cornette was sentenced under the residual clause such that Cornette cannot present any Johnson II -based challenge to his sentence. But under United States v. Winston , 850 F.3d 677 (4th Cir. 2017), we are to read this equivocation in the record in Cornette’s favor. We recently reaffirmed this reasoning, stating that "a Johnson II -based § 2255 motion relies on a new rule of constitutional law ... when the petitioner’s ACCA-enhanced sentence ‘may have been predicated on application of the now-void residual clause.’ " United States v. Hodge , 902 F.3d 420, 426 (4th Cir. 2018) (citing Winston , 850 F.3d at 682 ). In other words, we "will not penalize a movant for a court’s discretionary choice not to specify under which clause of Section 924(e)(2)(B) an offense qualified as a violent felony." Winston , 850 F.3d at 682. Since it is not clear one way or the other, we assume for purposes of this appeal that Cornette was sentenced under the ACCA’s residual clause.

B.

We now turn to whether Cornette’s appeal waiver bars us from considering the merits of his ACCA petition for relief. We hold that it does not under the circumstances of this case.

Cornette’s plea agreement waived his right to appeal from errors in the sentence imposed against him, except for claims of ineffective assistance of counsel and prosecutorial misconduct. Cornette concedes that the claim he presses here is neither an ineffective assistance of counsel nor a prosecutorial misconduct claim. But Cornette contends that his otherwise valid appeal waiver does not bar him from now arguing that by imposing a sentence under the now unconstitutional residual clause of the ACCA, the district court...