United States v. Newbold

Decision Date30 June 2015
Docket NumberNo. 10–6929.,10–6929.
Citation791 F.3d 455
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Joseph K. NEWBOLD, Defendant–Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

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.

Before KING and GREGORY, Circuit Judges, and DAVIS, Senior Circuit Judge.

Opinion

Vacated and remanded by published opinion. Judge GREGORY wrote the opinion, in which Judge KING and Senior Judge DAVIS joined.

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.

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 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 Fed.Appx. 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 imprisonment of less than ten years.2 Newbold, 215 Fed.Appx. 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 Fed.Appx. 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).

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, 130 S.Ct. 2577, 177 L.Ed.2d 68 (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 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, ––– U.S. ––––, 134 S.Ct. 897, 187 L.Ed.2d 767 (2014) (mem.). Thus presented, somewhat miraculously, with Newbold's timely § 2255 petition, we granted an expanded certificate of appealability3 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, 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, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) ; see also United States v. Hayman, 342 U.S. 205, 219, 72 S.Ct. 263, 96 L.Ed. 232 (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 serve as a...

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