                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-4114


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CAMDEN TAYLOR BARLOW,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:14-cr-00182-NCT-1)


Argued:   October 28, 2015                Decided:   December 21, 2015


Before NIEMEYER and MOTZ, Circuit Judges, and M. Hannah LAUCK,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed in part, vacated in part, and remanded for resentencing
by published opinion.    Judge Motz wrote the opinion, in which
Judge Niemeyer and Judge Lauck joined.


ARGUED: Kathleen Ann Gleason, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant.     Ripley
Eagles Rand, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee. ON BRIEF: Louis C. Allen, Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greensboro, North Carolina, for Appellant.
DIANA GRIBBON MOTZ, Circuit Judge:

      Camden Barlow pled guilty to one count of possession of a

firearm as a felon and, on the basis of prior state felonies,

received an enhanced fifteen year sentence as an armed career

criminal under 18 U.S.C. §§ 922(g)(1) and 924(e) (2012).                             He

appeals raising two challenges.              First, he maintains that he had

not   previously      committed    three      violent    felonies       and    so   his

sentence   as    an   armed    career    criminal       under   §     924(e)    cannot

stand.     Second,     he     contends   that    none     of    his    prior     state

convictions qualify as felony predicates under § 922(g)(1).                         For

the reasons that follow, we conclude that Barlow’s prior state

convictions do constitute felony predicates under § 922(g)(1),

but we must vacate his sentence as an armed career criminal and

remand for resentencing.



                                         I.

      On   May   27,    2014,     a   grand     jury     indicted       Barlow      for

possession of a firearm after having committed three violent

state felonies, in violation of §§ 922(g)(1) and 924(e).

      A year earlier, in April 2013, Barlow had pled guilty in

state court to two counts of felony speeding to elude arrest, in

violation of N.C. Gen. Stat. § 20-141.5(b) (2014).                             In July

2013, Barlow pled no contest to two counts of felony breaking

and entering, in violation of N.C. Gen. Stat. § 14-54(a) (2014).

                                         2
Barlow received two consecutive sentences of eight to nineteen

months’ imprisonment for his breaking and entering convictions.

For his speeding to elude arrest convictions, the sentencing

court      found     mitigating        facts       and    sentenced      Barlow     to   two

consecutive sentences of four to fourteen months.                            Under North

Carolina’s structured sentencing scheme, given Barlow’s criminal

record, the maximum presumptive sentence for each of the four

crimes was nineteen months’ imprisonment.                          See N.C. Gen. Stat.

§ 15A-1340.17(c), (d) (2014).

      Barlow maintained at sentencing that he had not previously

committed three violent felonies and so should not be sentenced

as   a     career    criminal     under        the       Armed   Career    Criminal      Act

(“ACCA”).         He also asserted that none of his prior state crimes

constituted felonies.             The court permitted Barlow to pose the

second argument notwithstanding his guilty plea, concluding that

if   the    court     accepted    the    argument,         it    would    provide    Barlow

grounds      to     withdraw     the    plea       and    obtain    dismissal       of   the

indictment. 1




      1The Government does not argue that Barlow waived this
argument   by   executing  the   plea  agreement.     While  an
unconditional guilty plea conclusively establishes the elements
of an offense, United States v. Willis, 992 F.2d 489, 490 (4th
Cir. 1993), a defendant may withdraw his plea prior to
sentencing for a fair and just reason, which includes assertion
of a credible claim of legal innocence, United States v. Moore,
931 F.2d 245, 248 (4th Cir. 1991).


                                               3
        The district court carefully considered and rejected both

arguments.      First, the court disagreed with Barlow’s contention

that    that   his     prior   state    convictions    were   not    felonies    for

purposes of § 922(g)(1) because they did not expose him to a

term or imprisonment of more than one year.                   Second, the court

imposed the ACCA enhancement.              In doing so, it counted Barlow’s

two convictions for speeding to elude arrest as separate violent

felonies, but consolidated his two convictions of breaking and

entering into a single violent felony after finding that they

arose    out    of     the   same   criminal      episode.     The     court    also

indicated      that     a    juvenile     adjudication   of    delinquency       for

discharging      a    weapon   into     occupied   property    under    N.C.    Gen.

Stat. § 14-34.1 (2014) could qualify as an additional violent

felony for purposes of the ACCA.                 As a result, the court found

at least the requisite three violent felonies necessary for the

ACCA enhancement and sentenced Barlow to the mandatory minimum

of 180 months’ imprisonment.             Barlow timely filed this appeal.



                                          II.

        The less complex of Barlow’s appellate arguments involves

his     two    North     Carolina       felony    speeding    to    elude   arrest

convictions.         He maintains that these offenses do not constitute

violent felonies under the ACCA.



                                           4
     The ACCA provides for a sentencing enhancement for persons

who violate § 922(g) and have three previous convictions for

violent felonies.        See 18 U.S.C. 924(e).                 The North Carolina

crime of speeding to elude arrest does not have an element of

use, attempted use, or threatened use of physical force against

the person of another.             Compare 18 U.S.C. § 924(e)(2)(B)(i),

with N.C. Gen. Stat. § 20-141.5(b).                  Nor is it among the listed

violent felonies in the ACCA -- burglary, arson, extortion, or a

crime     involving    the    use    of       explosives.         See       18      U.S.C.

§ 924(e)(2)(B)(ii).           Therefore,        to     constitute       a    crime     of

violence for purposes of the ACCA, the district court must have

found that this offense qualified under the residual “otherwise”

clause,     which   defines    a    violent      felony     as    any       crime    that

“otherwise involves conduct that presents a serious potential

risk of physical injury to another.”                 Id.

     After    Barlow’s    sentencing,         the    Supreme     Court      issued     its

opinion in Johnson v. United States, 576 U.S. ___, 135 S. Ct.

2551 (2015).        There the Court invalidated the ACCA’s “residual

clause” as unconstitutionally vague.                   Id. at 2557, 2563.             The

Government concedes that, in light of Johnson, “Barlow’s two

North Carolina state convictions for Felony Speeding to Elude

Arrest no longer constitute valid ACCA predicates.”                         Appellee’s

Suppl. Br. at 4.         As “Barlow now has at most two valid ACCA

predicate     convictions,”        his    “fifteen-year          sentence        imposed

                                          5
pursuant      to    the       ACCA     is    no    longer       valid.”         Id.    (footnote

omitted). 2        We agree.         Accordingly, we must remand this case for

resentencing.



                                                  III.

     Barlow’s remaining argument poses a more complicated and

more comprehensive              challenge.             He   contends     that    none    of   his

prior North Carolina convictions constitute felonies and thus he

could    not       be     a     felon       in    possession       of     a   firearm     under

§ 922(g)(1).             This     is      so,    he    maintains,       because       state   law

requires   his          release      on     post-release        supervision       nine    months

prior to the expiration of his maximum sentence, and so none of

those convictions exposed him to a term of imprisonment of more

than one year.

     The North Carolina Structured Sentencing Act determines the

length of the term of imprisonment Barlow faced.                                      In United

States v. Simmons, 649 F.3d 237, 240, 249-50 (4th Cir. 2011) (en

banc), we held that the Structured Sentencing Act establishes a

“carefully         crafted       sentencing           scheme”    in     which    two     factors


     2  The Government also recognizes that, after Barlow’s
sentencing, this court held that the North Carolina felony of
discharging a firearm into an occupied building is not a “crime
of violence” under U.S.S.G. § 2L1.2 because it “does not require
that an offender use, attempt to use, or threaten to use force
against another person.” United States v. Parral-Dominguez, 794
F.3d 440, 445 (4th Cir. 2015) (emphasis omitted).


                                                   6
determine the length of felony sentences:                    the designated “class

of   offense”    and   the   offender’s        own    criminal      record.        After

ascertaining a defendant’s class of offense and “prior record

level,” a sentencing judge identifies from statutory tables the

minimum and maximum terms of imprisonment.                       See N.C. Gen. Stat.

§ 15A-1340.17(c), (d).        Thus, as we held in Simmons, in this way

the Structured Sentencing Act and its statutory tables determine

if a crime is punishable by a term of imprisonment of more than

one year.

      After issuance of our August 17, 2011 opinion in Simmons,

the North Carolina legislature enacted the Justice Reinvestment

Act, effective December 1, 2011 and so controlling here.                             That

legislation made a number of significant changes to the state’s

structured    sentencing     regime,     including          reforms   to     probation,

sentencing      for    habitual      felons,     and       the     proper    place    of

confinement      for     misdemeanants.               See        generally      Justice

Reinvestment     Act    of   2011,    2011     N.C.        Sess.   Laws     192;   Jamie

Markham, The Justice Reinvestment Act: An Overview, N.C. Crim.

L.    (June     30,     2011),       http://nccriminallaw.sog.unc.edu/the-

justice-reinvestment-act-an-overview/.

      Most relevant here, the Justice Reinvestment Act mandates

terms   of    post-release     supervision           for    all    convicted       felons

except those serving sentences of life without parole.                        See 2011

N.C. Sess. Laws 192 § 2.(a), (b).                    Prior to enactment of the

                                         7
Justice   Reinvestment    Act,     serious    Class    B1    through   E    felons

serving terms less than imprisonment for life received post-

release    supervision     beginning        nine    months     prior       to   the

expiration of their maximum sentences.              See id.    The new statute

lengthens the term of post-release supervision for those serious

felonies to twelve months and introduces a new nine-month period

of mandatory post-release supervision for all other felonies,

including Barlow’s.      See id.

     When mandating these new terms of post-release supervision

in the Justice Reinvestment Act, the legislature also amended

the statutory tables in the Structured Sentencing Act.                     See id.

§ 2.(e), (f).    In accord with the amended statutory tables, the

lowest    possible   maximum     term   of    imprisonment      for    a    felony

conviction in North Carolina, regardless of offense class or

prior record level, is thirteen months.               See id. § 2.(e); N.C.

Gen. Stat. § 15A-1340.17(d), (e). 3                Thus, all North Carolina

felonies now qualify as federal predicate felonies; those crimes

that the state labeled as “felonies,” but which previously did

not expose a defendant to a term of imprisonment of more than

one year, have been eliminated.

     3 In their altered form, the statutory tables refer only to
a “maximum term of imprisonment.”      N.C. Gen. Stat. § 15A-
1340.17(d), (e).   They are silent on what proportion of that
term a prisoner will spend in prison or under alternative forms
of state custody, and do not mention post-release supervision at
all. See id.


                                        8
     For example, given Barlow’s offense class (H) and prior

record level (II), the maximum term of imprisonment he would

have faced on each conviction prior to the new legislation was

ten months.     See N.C. Gen. Stat. § 15A-1340.17(c), (d) (2010).

After the Justice Reinvestment Act, that period increased to

nineteen   months    and   rendered   an    offense   that     would    not   have

qualified as a predicate felony under Simmons as one that does.

See 2011 N.C. Sess. Laws 192 § 2.(e).

     Understandably, Barlow resists this conclusion.                   He insists

that “post-release supervision is supervision and not a term of

imprisonment.”       Appellant’s Br. at 18 (emphasis in original).

He maintains that his state convictions exposed him to a term of

imprisonment    of   not   more    than    ten   months,   followed      by   nine

months of post-release supervision.

     The   North     Carolina     legislature,     however,     has     expressly

rejected that view.        State law defines post-release supervision

as “[t]he time for which a sentenced prisoner is released from

prison before the termination of his maximum prison term.”                    N.C.

Gen. Stat. § 15A-1368(a)(1) (emphasis added).                 The “sentence or

sentences”     imposed     do   not   terminate       until    “a      supervisee

completes the period of post-release supervision.”                    Id. § 15A-

1368.2(f).     State law accordingly places time spent on post-

release supervision within, not outside of or in addition to,

the maximum term of imprisonment.

                                       9
      Of   course,   the     North   Carolina   legislature   could     have

followed Barlow’s preferred route by retaining the maximum term

of   imprisonment    and   requiring   a   nine-month   period   of    post-

release supervision follow that term of imprisonment.                 But it

did not do this.     The deliberateness of the legislature’s choice

not to do so seems crystal clear.               For when it enacted the

Justice Reinvestment Act, a well-established model -- federal

supervised release -- did precisely what Barlow would like the

North Carolina legislature to have done.

      Under federal law, a court “may include as a part of [a]

sentence a requirement that [a] defendant be placed on a term of

supervised release after imprisonment.”             18 U.S.C. § 3583(a)

(2012) (emphasis added).        Thus, a federal judge can only impose

supervised release in addition to, and subsequent to, a term of

imprisonment.    See id. 4     Similarly, the United States Sentencing

Guidelines provide that “a term of supervised release does not

replace a portion of the sentence of imprisonment, but rather is

an order of supervision in addition to any term of imprisonment

imposed by the court.”        U.S. Sentencing Guidelines Manual ch.7,

      4Even federal criminal statutes that set mandatory terms of
supervisory release explicitly separate the imprisonment term
from supervised release.    See, e.g., 21 U.S.C. § 841(b)(1)(B)
(2012) (providing that sentences under this subparagraph shall
“include a term of supervised release of at least 4 years in
addition to such term of imprisonment” and doubling the duration
of supervision to 8 years if the defendant has a prior
conviction) (emphasis added).


                                     10
pt. A(2)(b) (U.S. Sentencing Comm’n 2015); accord United States

v. Granderson, 511 U.S. 39, 50 (1994) (“Supervised release, in

contrast     to        probation,      is    not    a    punishment      in   lieu    of

incarceration.”).              In short, time spent on federal supervised

release unambiguously does not constitute part of the term of

imprisonment.

       The North Carolina legislature did not follow the federal

model.      Accordingly, notwithstanding similarities in terminology

and purpose between post-release supervision in North Carolina

and federal supervised release, the two programs differ in a

very   important         way:      only     North   Carolina     law    includes     the

supervision       in     the    term   of    imprisonment.        A     comparison    of

federal     and    North       Carolina     criminal     judgments      reflects     this

distinction.       A typical federal criminal judgment orders a term

of imprisonment, followed by a term of supervised release, which

is not included in the term of imprisonment.                          In contrast, a

North Carolina judgment for even the least serious felony, like

breaking and entering, orders the felon imprisoned for a maximum

term of months, with no mention of post-release supervision.

       To   be    sure,    persons       serving     felony     sentences     in   North

Carolina typically do not spend the last nine months (or twelve

months for Class B1 through E felonies) of their sentences in

prison.          But     some    will,      and    the   fact    that    post-release

supervision is part of the term of imprisonment has significant

                                             11
consequences for these offenders.                    Supervisees who abscond from

supervision or who commit an additional crime while on release

“will be returned to prison up to the time remaining on their

maximum    imposed       terms.”       N.C.        Gen.    Stat.    §    15A-1368.3(c)(1)

(emphasis added).             Once again, the statutory language renders

post-release supervision part of the total term of imprisonment.

This    provision        makes        clear        that     those        on     post-release

supervision are still serving their terms of imprisonment.                                And

if a supervisee absconds and is captured, he will serve his

remaining term of imprisonment in prison.

       Despite        this,     Barlow        argues        that        this     period    of

reimprisonment is irrelevant under Simmons because it results

from    “some    second,       post-offense          and    post-imprisonment           act.”

Appellant’s Br. at 18.           This argument ignores not only the above

statutory    provisions         but    also        the    fact    that    North       Carolina

courts have expressly held that when a supervisee violates a

condition   of        post-release      supervision         and     returns      to    prison,

that period of imprisonment is part of the original sentence,

not punishment for the supervision infraction.                                 See State v.

Sparks,    657    S.E.2d       655,    661     (N.C.       2008)     (“[R]evocation        of

defendant’s post-release [supervision] and reinstatement of the

time remaining on his original sentence result from defendant’s

original    felony       convictions      and       not    from     his       conduct   which

triggered       the    revocation,       absconding          from       his     post-release

                                              12
officer.”); State v. Corkum, 735 S.E.2d 420, 423 (N.C. Ct. App.

2012)    (“There     is   no    new    sentence     imposed      as   a    result       of    a

revocation     of     post-release         supervision;        only       the    remaining

portion of the original sentence is activated.”). 5

     The    purely     administrative         nature     of    revocation         of    post-

release     supervision         in    North      Carolina     echoes       the     state’s

treatment of post-release supervision as part of the term of

imprisonment.             The    Post-Release           Supervision         and        Parole

Commission        (“the     Commission”),          an     administrative               entity

operating     under       the   state’s       Division      of   Adult          Correction,

oversees    the     revocation        of   post-release       supervision         after      an

infraction.       N.C. Gen. Stat. §§ 15A-1368(a)(3), (b); 143B-720.

The Commission conducts preliminary revocation hearings in which

a supervisee may appear and speak on his own behalf, but rules

of evidence do not apply.             Id. § 15A-1368.6(d).

     5 Barlow also argues that the manner in which state law
accounts for consecutive sentences establishes that post-release
supervision is not part of the term of imprisonment. See N.C.
Gen. Stat. § 15A-1354(b) (providing that a defendant convicted
of consecutive felony sentences receives a combined maximum term
equal to “the total of the maximum terms of the consecutive
sentences . . . less nine months for each of the second and
subsequent sentences imposed”).      The legislative choice to
excuse all but one period of post-release supervision for
convicted   felons  serving   consecutive  sentences  may   seem
anomalous, but surely it is a choice the legislature could make.
That choice does not repeal other state statutes or somehow
demonstrate that, notwithstanding them, post-release supervision
does not constitute part of the term of imprisonment.    It also
does not impact whether each crime individually is punishable by
more than one year’s imprisonment.


                                            13
       If   a    hearing         officer   finds     probable        cause     to   believe      a

supervisee violated a condition of post-release supervision, he

may    order     the       supervisee      to    “serve      the    appropriate        term     of

imprisonment,”         subject       to    a    final     revocation         hearing       to   be

conducted “within 45 days of the supervisee’s reconfinement.”

Id. § 15A-1368.6(d), (e).                   Thus, a supervisee arrested for a

violation may be re-confined in prison before the administrative

agency      makes      a    final    determination           of     whether     a     violation

occurred.        This occurs without a return to the sentencing court

and may occur without a ruling from a judge.                                See id. § 15A-

1368.6(c) (providing that hearing officers need not be judicial

officials).         This, of course, contrasts with federal supervised

release, where the sentencing court maintains jurisdiction over

supervisees         and           resentences          defendants         to        terms       of

reimprisonment for violations.                   See 18 U.S.C. § 3583(e)(3).

       In sum, the North Carolina legislature clearly intended to

include post-release supervision as part of a felon’s term of

imprisonment.              And    under    Simmons      we    ask    only      what    term     of

imprisonment the defendant was exposed to for his conviction,

not the most likely duration of his imprisonment.                                   See United

States      v.   Kerr,      737    F.3d    33,    38    (4th       Cir.   2013);      see    also

Simmons, 649 F.3d at 248-50.                    In every case, North Carolina law

now exposes felons to terms of imprisonment exceeding one year.

Of    course,     those      felony       sentences     include       a   period      of    post-

                                                14
release    supervision.   But   state   law   renders   post-release

supervision part of the term of imprisonment.      Therefore, each

of Barlow’s convictions, for which he faced a nineteen-month

term of imprisonment, qualifies as a prior felony conviction

under 18 U.S.C. § 922(g)(1).



                                IV.

     For the foregoing reasons, the judgment of the district

court is

                                AFFIRMED IN PART, VACATED IN PART,
                                    AND REMANDED FOR RESENTENCING.




                                15
