United States v. Kerr, No. 12-4775

Decided: December 3, 2013

The Fourth Circuit affirmed the district court’s judgment and held that the defendant’s prior North Carolina state convictions, which sentenced the defendant in the mitigated rather than the presumptive range of punishment under North Carolina’s Structured Sentencing Act, did qualify as predicate felonies for sentencing under the Armed Career Criminal Act (“ACCA”) and for a 18 U.S.C. § 922(g)(1) conviction.

Norman Alan Kerr (“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). The indictment alleged that, for 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. Kerr had three 2008 North Carolina state convictions for felony breaking and entering.

On appeal, the Fourth Circuit reviewed the novel question of whether a district court, in determining whether a defendant has the requisite predicate felonies for sentencing as an armed career criminal, must consider the fact that the defendant received a mitigated sentence of less than one year in prison under North Carolina law for those felonies.

North Carolina law establishes three sentencing ranges based on the appropriate offense class and prior record level. The presumptive sentencing range is the default. The sentencing judge may deviate from the presumptive range if the judge makes written findings of aggravating or mitigating factors, finds that aggravating factors outweigh mitigating factors (or vice versa), and chooses to depart. But North Carolina law also provides that a judge may sentence a defendant in the presumptive range even if the judge finds that mitigating factors outweigh those in aggravation. In Simmons and Edmonds, the Fourth Circuit held that the maximum sentence the particular defendant faced—not the sentence actually imposed—controls whether the defendant has a qualifying predicate felony.

The state court judge who sentenced Kerr found that the relevant mitigating factors outweighed those in aggravation and then chose to exercise her discretion by sentencing Kerr to a mitigated range sentence of 8 to 10 months’ imprisonment for his crimes. But, the judge remained free at all times to sentence Kerr to a presumptive prison term of up to 14 months.

Because the maximum possible prior sentence that Kerr faced for his prior state convictions exceeded one year, and because that potential punishment was far from hypothetical, the Fourth Circuit held that Kerr’s prior state convictions qualified as predicate felonies for sentencing under the ACCA. For the same reasons, the Fourth Circuit held that Kerr had the requisite predicate felony for his § 922(g)(1) conviction.  Because he was not innocent of his § 922(g)(1) conviction, his contention that his prior appellate counsel was ineffective for failing to raise this very issue in his first appeal was held to be moot.

Full Opinion

– Sarah Bishop

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