United States v. Kerr

• Decision Date: 03 December 2013
• Docket Number: No. 12–4775.,12–4775.
• Citation: 737 F.3d 33
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Norman Alan KERR, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

737 F.3d 33

UNITED STATES of America, Plaintiff–Appellee,

v.Norman Alan KERR, Defendant–Appellant.

No. 12–4775.

United States Court of Appeals,Fourth Circuit.

Argued: Sept. 19, 2013.

Decided: Dec. 3, 2013.

ARGUED:George Entwistle Crump, III, Rockingham, North Carolina, for Appellant. Ripley Eagles Rand, Office of The United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF:Robert A.J. Lang, Assistant United States Attorney, Office of the United States Attorney, Winston–Salem, North Carolina; Tammy Chen Hsu, Second Year Law Student, Wake Forest University School of Law, Winston–Salem, North Carolina, for Appellee.

Before AGEE, DAVIS, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge DIAZ wrote the majority opinion, in which Judge AGEE joined. Judge DAVIS wrote a dissenting opinion.

DIAZ, Circuit Judge:

A jury convicted Norman Alan Kerr of possession of a firearm after being previously convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1). The district court determined that Kerr qualified as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and sentenced him to 268 months' imprisonment.

Kerr raises three issues in this appeal. First, he contends that his prior North Carolina state convictions do not qualify as predicate felonies for sentencing under the ACCA because he was sentenced in the mitigated range—as opposed to the presumptive range—of punishment under North Carolina's Structured Sentencing Act. Second, he argues that the same reasoning precludes his § 922(g)(1) conviction, which similarly requires a predicate felony offense. Finally, Kerr asserts that his counsel in his initial appeal rendered ineffective assistance by failing to challenge his conviction on the basis that he lacked a predicate felony. We disagree with Kerr's first two arguments and find that the third one is moot. We therefore affirm the district court's judgment.

I.

Kerr was charged with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e). The indictment alleged that, for the purposes of the ACCA, Kerr had previously been convicted of three violent felonies or serious drug offenses punishable by imprisonment for a term greater than one year. The record establishes that Kerr had three 2008 North Carolina state convictions for felony breaking and entering. ¹

Following a jury trial, Kerr was convicted of possession of a firearm by a convicted felon. At his sentencing hearing, Kerr objected to his designation as an armed career criminal under § 924(e), which required that Kerr have a combination of three convictions for violent felonies or serious drug offenses. The district court overruled the objection, relying on then-binding precedent that a North Carolina state conviction constitutes a crime punishable by a term of imprisonment exceeding one year “if any defendant charged with that crime could receive a sentence of more than one year,” United States v. Harp, 406 F.3d 242, 246 (4th Cir.2005), overruled by United States v. Simmons, 649 F.3d 237 (4th Cir.2011) (en banc). As a result, the court sentenced Kerr under the ACCA to 268 months' imprisonment.

Kerr appealed, arguing that the district court erred in denying his motion to substitute counsel and in sentencing him under the ACCA. We placed the appeal in abeyance pending our decision on rehearing in Simmons. Our en banc opinion in Simmons overruled Harp and held that a North Carolina conviction is a crime punishable by a term of imprisonment exceeding one year only if the particular defendant is eligible for such a sentence, taking into account his criminal history and the nature of his offense. See649 F.3d at 247 & n. 9.

We subsequently affirmed the district court's denial of Kerr's motion to substitute counsel and vacated Kerr's sentence because Harp was no longer good law. With respect to sentencing, we expressed no opinion regarding whether Kerr's prior state convictions qualified as predicate felonies.

On remand, Kerr's counsel filed a motion asking the court to vacate Kerr's conviction and dismiss the indictment. Prior to resentencing, the probation officer prepared a supplement to the original presentence investigation report, concluding that Kerr's 2008 state breaking and entering convictions were each punishable by a presumptive maximum sentence of 14 months' imprisonment and thus qualified as ACCA predicates. The district court denied counsel's motion to vacate and dismiss. Agreeing that the prior breaking and entering convictions qualified as ACCA-predicate crimes, the court again sentenced Kerr to 268 months' imprisonment. This appeal followed.

II.

A.

We review de novo the question of whether a prior state conviction is a predicate felony for the purposes of federal criminal law. See United States v. Jones, 667 F.3d 477, 482 (4th Cir.2012). In order for a defendant to be sentenced as an armed career criminal on a felon-in-possession conviction, the defendant must have a combination of three convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e). A violent felony is a crime of violence punishable by a term exceeding one year of imprisonment. 18 U.S.C. § 924(e)(2)(B).

B.

To properly analyze Kerr's arguments, we must first review his 2008 state convictions under the sentencing regime mandated by North Carolina's statutory framework.

North Carolina's Structured Sentencing Act directs a judge to impose felony sentences based on two criteria: the designated offense class and the offender's prior record level. N.C. Gen.Stat. § 15A–1340.13(b). The Act, or in certain cases a different statute, sets forth the offense class. Id.§ 15A–1340.17(a). The sentencing judge calculates the offender's prior record level by adding the points assigned to each of the offender's prior convictions. Id. § 15A–1340.14(a)–(b).

Next, the judge 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). As a default, the judge sentences the defendant within the presumptive range. The judge may deviate from the presumptive range, however, if the judge makes written findings of aggravating or mitigating factors established by the Act, finds that aggravating factors outweigh mitigating factors (or vice versa), and chooses to depart from the presumptive range.²Id. §§ 15A–1340.13(e), 15A–1340.16(b), (c).

After identifying the applicable sentencing range, the judge must select the defendant's minimum sentence from within that range.³Id.§ 15A–1340.17(c). Once the judge selects the minimum sentence, separate statutory charts provide the corresponding maximum sentence. Id.§ 15A–1340.17(d)– (e).

C.

We turn now to Kerr's three 2008 breaking and entering convictions, which constituted Class H felonies. At the time of sentencing for those state convictions, Kerr had a prior record level of IV. Pursuant to the statutory charts, he thus faced a presumptive minimum term of 9 to 11 months' imprisonment and a corresponding presumptive maximum sentence of 14 months' imprisonment.⁴

The state sentencing judge found, however, that the factors in mitigation outweighed those in aggravation and that a mitigated sentence was justified. The judge then exercised her discretion to depart from the presumptive range and sentenced Kerr in the mitigated range. The mitigated range included a possible maximum sentence of 11 months' imprisonment. Ultimately, the judge sentenced Kerr to 8 to 10 months' imprisonment.

III.

A.

Kerr contends that because the state court judge chose to sentence him in the mitigated range, he could not have been sentenced to a term of imprisonment for greater than one year for any of his three 2008 breaking and entering convictions.⁵ As a result, Kerr contends that he lacks the requisite predicate felonies for sentencing as an armed career criminal under this court's reasoning in Simmons.

Simmons did not, however, decide the precise issue before us. Rather, we considered there whether a prior North Carolina state conviction for marijuana possession, for which the defendant faced no possibility of imprisonment, constituted an offense punishable by imprisonment for more than one year, thereby triggering a sentencing enhancement under the Controlled Substances Act. Simmons, 649 F.3d at 239. A panel of this court originally affirmed Simmons's sentence in an unpublished disposition, but the Supreme Court vacated that judgment and remanded the case for further consideration in light of Carachuri–Rosendo v. Holder, 560 U.S. 563, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010). Simmons, 649 F.3d at 239.

In Carachuri–Rosendo, the question presented was whether a lawful permanent resident of the United States was barred from seeking cancellation of removal under the Immigration and Nationality Act (the “INA”) because he had previously been convicted of an aggravated felony. 130 S.Ct. at 2580. As the Court explained, the INA defined an “aggravated felony” to include any crime “punishable as a federal felony” under the Controlled Substances Act—i.e., a crime for which the “maximum term of imprisonment authorized” exceeds one year. Id. at 2581 (internal quotation marks omitted).

Carachuri–Rosendo had previously been convicted of two misdemeanor drug possession offenses in Texas. Id. at 2580. The government argued nonetheless that Carachuri–Rosendo had been convicted of an aggravated felony because he hypothetically could have received a two-year sentence for his second misdemeanor offense if he had been prosecuted in federal court. Id. at 2582. This was true because a defendant may receive a two-year maximum sentence under federal law for possession of narcotics if the defendant has a prior drug conviction. Id. at 2581.

The Court, however, rejected this hypothetical approach,...