Decided: December 21, 2015
In a case about criminal sentencing, the Fourth Circuit found that Camden Barlow’s prior state convictions qualified as felonies under federal law, but that, given new law, he did not have enough predicate violent felonies to qualify as an armed career criminal under the Armed Career Criminal Act (ACCA). On this basis, the Fourth Circuit partially affirmed, and partially reversed the District Court, and remanded the case for resentencing.
In April, 2013, Barlow pled guilty to two North Carolina counts of felony speeding to elude arrest. In July, 2013, Barlow pled no contest to two North Carolina counts of felony breaking and entering. In May, 2014, Barlow was indicted by a federal grand jury for being a felon in possession of a firearm who had committed three prior violent state felonies. At trial, Barlow pled guilty, but maintained that his prior state crimes were not felonies, and that he did not have three prior violent felonies as required for ACCA sentencing enhancement. The District Court found against Barlow on both counts. The Court found that his state crimes were felonies because they carried a possible sentence of more than one year. The Court then counted his two speeding convictions as two felonies, but his two breaking and entering convictions as one felony because the two breaking and entering charges came from the same incident. The Court also found that Barlow’s prior North Carolina juvenile delinquency conviction for discharging a firearm into occupied premises could be a predicate violent felony. Having found at least the three required predicate violent felonies, the District Court sentenced Barlow as an armed career criminal under the ACCA to the mandatory minimum 180 months imprisonment. Barlow appealed to the Fourth Circuit. He argued that his speeding convictions did not qualify as predicate violent felonies under the ACCA. He also argued that none of his prior state convictions constituted felonies, because North Carolina sentencing law required a nine-month post-release supervision period for the last nine months of his sentence, and each of his actual prison sentences was thus under one year, so he did not meet the definition of a felon, and thus could not be a felon in possession.
The Fourth Circuit first found that the two speeding to elude arrest convictions did not constitute predicate violent felonies under the ACCA. The Fourth Circuit noted that for a felony to be an ACCA violent felony, it must: 1) involve “use, attempted use, or threatened use of physical force” against another person, 2) be among an ACCA list of violent felonies, or 3) fall into a residual category as a crime that “‘otherwise involves conduct that presents a serious potential risk of physical injury to another.’” Speeding to elude arrest did not fit into the first two categories, so it could only be an ACCA predicate violent felony if it fit into the third category. The Supreme Court’s 2015 Johnson v. U.S. ruling held this third category to be unconstitutionally vague. On this basis, the Government in the instant case conceded that the two speeding to elude arrest convictions no longer qualified as predicate violent felonies under the ACCA. Thus, Barlow only had at most two predicate violent felonies under the ACCA, and thus was no longer eligible for ACCA sentencing enhancement.
The Fourth Circuit next found that Barlow’s remaining state convictions qualified as felonies. The Fourth Circuit found that under North Carolina’s Structured Sentencing Act and Justice Reinvestment Act, all felonies in North Carolina now include a minimum possible sentence of at least 13 months, so all qualify as predicate felonies under federal law. The new laws also require a mandatory nine-month period of supervised release to be served as the last nine months of the prison sentence imposed for a category of felonies including those for which Barlow was convicted. Based upon North Carolina’s statutory language, a contrast with the federal sentencing system, and how North Carolina treats revocation of post-release supervision, the Fourth Circuit held that this post-supervision release period did not cut down the prison sentence, but was part of the prison sentence. Because the period of imprisonment for Barlow’s state crimes was thus long enough to qualify them as felonies under federal law, Barlow could be a felon in possession of a firearm. On this basis, the Fourth Circuit partly affirmed, and partly reversed the District Court, and remanded the case for resentencing.
Katherine H. Flynn