                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4912


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

HAROLD LUZONE FORTE,

                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-00164-NCT-1)


Submitted:   October 27, 2015              Decided:   November 4, 2015


Before NIEMEYER   and   WYNN,   Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, John A. Duberstein,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Robert A.J.
Lang, Michael F. Joseph, Assistant United States Attorneys,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Harold Luzone Forte appeals the 180-month downward variant

sentence imposed following his guilty plea to being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),

924(e)     (2012).       This    was    the     statutory          mandatory    minimum

sentence     that    could   have      been     imposed       on    Forte,     who    was

designated an armed career criminal (ACC) because he had three

prior convictions for violent felonies or serious drug offenses.

See 18 U.S.C. § 924(e)(1).                For the reasons that follow, we

vacate Forte’s sentence and remand this case for resentencing in

light of United States v. Newbold, 791 F.3d 455 (4th Cir. 2015).

                                          I.

     In     Forte’s     presentence        report,      the      probation      officer

identified three prior North Carolina felony convictions that

qualified as predicates under the Armed Career Criminal Act, 18

U.S.C. § 924(e)       (ACCA).       The    first   was     Forte’s       January     1991

North     Carolina    conviction       for     felony     sale      or   delivery      of

cocaine.     Forte, who was born in November of 1974, was 15 years

old when he possessed and sold less than one gram of cocaine on

two separate occasions.          The two charges were consolidated for

judgment, and Forte received a three-year sentence.

     This     sentence    was    imposed       under    North        Carolina’s      Fair

Sentencing    Act     (NCFSA),   the      then-applicable          sentencing     scheme

and predecessor to the North Carolina Structured Sentencing Act

                                           2
(NCSSA). 1         According to the PSR, these offenses were classified

as Class H felonies for which the statutory maximum sentence

that       could    have   been   imposed       was    10   years    in    prison;   the

presumptive         sentence,     however,       was    3   years’        imprisonment. 2

Despite the two instances of separate criminal conduct, this was

treated as a single conviction for ACC purposes (hereinafter

“1991 Drug Conviction”).

       The second ACC predicate was Forte’s November 1994 North

Carolina conviction for felony possession with intent to sell

and deliver cocaine and felony sale or delivery of cocaine, for

       1
       See N.C. Gen. Stat. § 15A-1340.4 (1983) (repealed eff.
Oct. 1, 1994). As this court recently explained:

       Fair   Sentencing   grouped   felonies   into   different
       classes   and   assigned    each   class    a   baseline,
       “presumptive” term of imprisonment.       It also set a
       maximum, aggravated term of imprisonment for each
       offense class.    By law, the judge could only deviate
       from the presumptive term by finding and recording
       aggravating or mitigating factors. . . .        The judge
       was excused, however, from making any such aggravating
       or mitigating findings if, in pertinent part: 1) she
       imposed a prison term pursuant to a plea arrangement;
       2) she imposed the presumptive term; or 3) two or more
       convictions were consolidated for judgment and the
       prison   term  did   not   exceed   the   total   of  the
       presumptive terms for each felony.

Newbold, 791 F.3d at 461 (citations omitted).

       2
       See State v. Lawrence, 667 S.E.2d 262, 264 (N.C. Ct. App.
2008) (identifying that, under the NCFSA, “a Class H felony
carried a maximum punishment of ten years, with a presumptive
term of three years”); State v. Artis, 372 S.E.2d 905, 908 (N.C.
Ct. App. 1988) (“Conviction for the sale of cocaine is a Class H
felony which has a presumptive term of three years.”).



                                            3
which     Forte     was   sentenced     to    three     years’      imprisonment

(hereinafter “1994 Drug Conviction”).               Underlying the 1994 Drug

Conviction was Forte’s February 1993 sale of a crack rock to an

undercover police officer.          This conduct occurred when Forte was

18 years old.       Like the 1991 Drug Conviction, under the NCFSA,

the statutory maximum term of imprisonment that could have been

imposed for these Class H felonies was 10 years’ imprisonment. 3

See Newbold, 791 F.3d at 462 (observing that possession with

intent to sell or deliver a controlled substance was a Class H

felony); (see also supra n.2).

      The third ACC predicate was Forte’s March 1995 conviction

for   felony   second     degree   murder,    for   which   Forte    received   a

14-year sentence.         Forte committed the underlying conduct in

November 1993, when he was 19 years old.

      The probation officer recommended a total adjusted offense

level of 31.      Coupled with Forte’s placement in criminal history

category VI, this yielded a Sentencing Guidelines range of 188-

235 months’ imprisonment.          Forte did not object to the PSR.

      Forte was 39 years old at his October 2014 sentencing, at

which     defense    counsel       conceded   that     Forte     was   properly

designated an armed career criminal.            The court adopted the PSR,

      3The NCSSA applied to offenses committed on or after
October 1, 1994, see State v. Branch, 518 S.E.2d 213, 215 (N.C.
Ct. App. 1999), and thus was not applicable to this conviction.



                                        4
including the recommended Guidelines calculations and resulting

sentencing range.

      Defense         counsel      offered     an     extensive       argument     for    a

downward       variance      to    the    statutory    mandatory       minimum    of     180

months.        Counsel suggested that the court consider the age of

Forte’s ACC predicates, emphasizing that they all occurred when

Forte    was      a   teenager.          Counsel    observed   that       the   1991   Drug

Conviction        would     not    have    qualified    as    an    ACC   predicate      had

Forte been tried and convicted as a juvenile instead of as an

adult.        Counsel suggested that treating as an ACC predicate a

prior conviction that accrued when the defendant was a juvenile,

but     was       treated     as     an     adult     under    state       law,    caused

constitutional            concerns        because     North        Carolina     permitted

significantly more harsh treatment of juvenile offenders than

other states.          Thus, counsel’s objection to the ACC designation

sounded in substantive due process and equal protection.

      While the district court did not go so far as to accept

Forte’s constitutional argument, it did agree that the age of

the ACC predicates made a 180-month sentence more appropriate.

After a fairly involved colloquy with Forte, the district court

imposed       a   180-month       sentence    for     the    reasons      identified     by

defense counsel.            The court further imposed a five-year term of

supervised release.           This appeal timely followed.



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                                               II.

     In his brief on appeal, Forte argues that using the 1991

Drug Conviction as an ACC predicate violates his rights to due

process and equal protection.                       This argument turns on Forte’s

position     that    the   same       conduct           would    “likely          have   been”

prosecuted    as    an   act    of    juvenile          delinquency         “in    any   other

state” than North Carolina, which elected to prosecute Forte as

an adult despite being only 15 years old when he committed the

offense.      (Appellant’s           Br.       at     19).      Forte       contends      that

“[a]llowing North Carolina convictions to be treated uniformly

with other states’ convictions simply does not comport with the

intent of the law, or with the constitutional guarantee of equal

protection under the law.”            (Appellant’s Br. at 18-19).

     Forte’s arguments are foreclosed by circuit precedent.                                 See

United   States     v.   Fonville,         5    F.3d     781,   785    (4th       Cir.   1993)

(rejecting defendant’s argument that the use of his prior North

Carolina conviction, which accrued before he was 18 years old,

violated     principles        of    equal           protection,      and     noting     that

Congress need not “prescribe a uniform age at which to consider

criminals adults, for federal sentencing purposes, under state

law to escape an equal protection challenge”); United States v.

Lender, 985 F.2d 151, 156-57 & n.* (4th Cir. 1993) (recognizing

“that the prosecuting jurisdiction’s determination of whether an

individual    is    prosecuted       as     a       juvenile    or   an     adult    must    be

                                                6
respected by later sentencing courts,” and holding that such

deference does not run afoul of the defendant’s constitutional

protections).          Neither of these decisions have been vacated,

abrogated, or overruled by an en banc decision of this court or

a Supreme Court ruling.               See Scotts Co. v. United Indus. Corp.,

315 F.3d 264, 271 n.2 (4th Cir. 2002) (noting that a panel of

this    court    cannot       explicitly     or        implicitly     overrule     circuit

precedent established by a prior panel; only the United States

Supreme Court or the en banc court may do so).                             Moreover, Forte

cites no legal authority to support his constitutional claims.

Cf. United States v. Titley, 770 F.3d 1357 (10th Cir. 2014)

(rejecting      defendant’s        contention           that    his    ACC     designation

violated principles of equal protection because his predicates

would    not    have       qualified    as   “serious          drug   offenses      had   he

committed them in 19 other states or the District of Columbia”

(alteration          and    internal      quotation        marks      omitted)),     cert.

denied, 135 S. Ct. 1520 (2015).

       In    light    of    the   broad    holdings       in    Lender      and   Fonville,

which       remain     good    law,    and       the     absence      of    any   contrary

authority, we reject Fonte’s constitutional attacks on his ACC

designation.

                                           III.

       On June 30, 2015, after the parties filed their briefs, we

published our decision in Newbold.                     Forte thereafter submitted a

                                             7
Fed. R. App. P. 28(j) letter of supplemental authority, arguing

that he is entitled to relief under Newbold.                    We directed the

parties to submit supplemental briefs addressing what impact, if

any, Newbold had on Forte’s ACC designation.                     The Government

concedes that Forte’s ACC sentence is infirm under Newbold.                     We

agree and thus vacate Forte’s sentence on this basis.

      Under the ACCA, a defendant convicted of violating § 922(g)

is   subject   to    a   statutory     minimum   sentence    of    15   years   of

imprisonment if he has sustained 3 prior convictions for either

violent felonies or serious drug offenses.              18 U.S.C. § 924(e).

A “serious drug offense” is defined, in part, as a state offense

that involves the manufacture, distribution, or possession 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).

      In Newbold, we held that our decision in United States v.

Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), applies when

evaluating     whether     a   prior    conviction    is    a     “serious   drug

offense” as necessary to qualify as an ACC predicate.                   791 F.3d

at   461-64.        We   ruled   that    Newbold’s    1984      North    Carolina

conviction did not qualify as a serious drug offense because,

under   the    NCFSA,    he    could    not   have   received      10   years   of

imprisonment for that offense without the finding of aggravating

factors.   Id. at 461-63.

                                         8
       Newbold had been sentenced for 8 offenses consolidated in 2

different judgments; without specifying the sentences for each

offense, the judgments reflected that Newbold received 7 years

of     imprisonment   for     3    of   these      offenses     and    10     years   of

imprisonment for the remaining 5 offenses.                     Id. at 461-62.         The

alleged ACC predicate conviction was for possession with intent

to distribute a controlled substance, a Class H felony with a

presumptive sentence of 3 years and a maximum sentence of 10

years of imprisonment.        Id. at 462.

       Because the judgment did not list any aggravating factors

found by the sentencing judge, and there was no evidence in the

plea     transcript     to        support       Newbold’s      admission       of     any

aggravating    facts,    we       concluded       that   the    record       failed   to

support the conclusion that Newbold faced up to 10 years of

imprisonment for his conviction.                  Id. at 463.         We ruled that,

under Simmons, a court cannot infer that aggravating factors

necessary to raise a defendant’s sentencing exposure existed but

were not recorded in the judgment of conviction.                       Id.    As there

was no allegation that aggravating factors existed or that the

sentencing court found any such aggravating factors, the maximum

sentence Newbold faced for his particular narcotics offense was

the    presumptive    term    of    three       years’   imprisonment,        which   of

course did not satisfy the statutory definition of a “serious

drug offense.”        Id. at 464.               We thus vacated Newbold’s ACC

                                            9
sentence and remanded the case to the district court for further

proceedings.

       The same result is had here.         The Government acknowledges

that    neither   the   1991   Drug    Conviction    nor    the   1994   Drug

Conviction qualify as a “serious drug offense” under Newbold

because Forte received the presumptive sentence of three years’

imprisonment for each offense and nothing in the PSR indicates

the existence of any aggravating factors that would have exposed

Forte to more than the presumptive range of imprisonment.                The

Government   further    concedes   that    Forte’s   1995   conviction    for

second degree murder is the lone ACC predicate and that Forte

should be resentenced in light of Newbold.

       Thus, although we reject Forte’s constitutional attack on

his ACC sentence, we vacate his sentence and remand this case

for resentencing in light of Newbold.            We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid in the decisional process.

                                                     VACATED AND REMANDED




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