                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4346


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ZAVIER MARQUIS DAVIS,

                Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:11-cr-00080-MOC-DSC-1)


Argued:   May 17, 2013                    Decided:   June 24, 2013


Before MOTZ, GREGORY, Circuit Judges, and Ellen L. HOLLANDER,
United States District Judge for the District of Maryland,
sitting by designation.


Vacated and remanded by published opinion. Judge Gregory wrote
the opinion, in which Judge Motz and Judge Hollander joined.


ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.    Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.       ON BRIEF: Henderson Hill,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina; Thomas N. Cochran, Assistant
Federal Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Asheville, North Carolina, for Appellant.         Anne M.
Tompkins, United States Attorney, Charlotte, North Carolina, for
Appellee.
GREGORY, Circuit Judge:

     As        permitted    under     North        Carolina         law,       Appellant

Zavier M. Davis received one consolidated sentence for multiple

violations of state law.             Based on its interpretation of the

career    offender     enhancement     in    the     United        States    Sentencing

Guidelines      (“Guidelines”),     see     U.S.S.G.        § 4B1.1,     the    district

court counted this consolidated sentence as at least “two prior

felony convictions” and sentenced Davis as a career offender.

We hold that a consolidated sentence under North Carolina law is

a   single       sentence   for     purposes       of       the     career     offender

enhancement.        Thus, we vacate Davis’ sentence and remand for

resentencing.


                                             I.

     In July 2004, Davis used a handgun to rob a Burger King in

Charlotte, North Carolina.           Davis was arrested and indicted in

state court for robbery with a dangerous weapon, in violation of

N.C. Gen. Stat. Ann. § 14-87. *             On February 23, 2005, Davis used

a gun to rob a McDonald’s in Charlotte, North Carolina.                           A day

prior     to    this   robbery,     Davis     used      a    gun    to   assault    one

individual and rob another.            In an eight-count indictment for

the February 2005 robberies, Davis was charged with five counts

of robbery with a dangerous weapon, among other things.

     *
      The date of Davis’ arrest is not evident in the record, but
his counsel conceded before the district court that it was prior
to his February 2005 robberies.


                                              2
       On September 9, 2005, Davis pled guilty in North Carolina

state court to several counts in the July 2004 and February 2005

state indictments.         As relevant, Davis pled guilty to six counts

of robbery with a dangerous weapon (“RWDW”)--one count for the

2004    robbery,     and     five   counts     for     the    2005    robberies.

Consistent   with    the     plea   agreement,   the    charges      were    to   be

consolidated for judgment as one RWDW and sentenced as a class D

felony. See N.C. Gen. Stat. Ann. § 15A-1340.15(b). In exchange,

the state agreed to dismiss the remaining charges. In accordance

with the plea, the state court imposed one sentence of 61 to 83

months.

       On July 31, 2010, Davis used a handgun to rob a Wendy’s

Restaurant in Charlotte, North Carolina.                In the U.S. district

court, without the benefit of a written plea agreement, Davis

pled guilty to three counts: (1) Hobbs Act robbery; (2) use of a

firearm in furtherance of a violent crime; and (3) possession of

a firearm by a convicted felon.

       Following his plea, a federal probation officer prepared a

Presentence Investigation Report (“PSR”).                  In calculating the

Guidelines   range    applicable      to   Davis,    the     probation      officer

noted that Davis qualified for the career offender enhancement

under U.S.S.G. § 4B1.1 because he was at least 18 years old when

he committed the instant robbery, and because he had two prior

North   Carolina     robbery    offenses.      Accordingly,     the    probation

officer recommended that the court sentence Davis as a career


                                           3
offender, increasing his base offense level from twenty-six to

thirty-two.

     At     sentencing,      Davis    objected      to     the   career     offender

enhancement, arguing that he received a “consolidated sentence”

for his prior state offenses and thus did not have “at least two

prior felony convictions” as defined by the Guidelines.                            The

Government     opposed      the   motion,    asserting       that   prior    felony

convictions that are consolidated for sentencing but based on

offenses that were separated by an intervening arrest constitute

separate sentences for the purposes of the enhancement. Because

Davis’ North Carolina offenses were separated by an intervening

arrest, the Government argued the career offender enhancement

was applicable.

     The     district    court     agreed    with    the     Government,     denied

Davis’     objection,    and      applied   the     enhancement.     Based    on    a

criminal history category of VI, it determined Davis’ applicable

career-offender Guidelines range was 262 to 327 months.                            The

district     court   then    sentenced      Davis     to    a    within-Guidelines

sentence of 276 months.

     Davis timely appealed and we have jurisdiction pursuant to

28 U.S.C. § 1291.


                                            II.

     Davis contends that the district court erroneously applied

the career offender enhancement to him because under the plain



                                             4
language       of    the       Guidelines,       a    single       consolidated         sentence

cannot        be    counted       as    separate           sentences.         We    review     the

interpretation           of    the    Guidelines          de    novo.     United      States    v.

Henoud, 81 F.3d 484, 490 (4th Cir. 1996).

                                                      A.

       To be labeled a career offender:                         (1) the defendant must be

18 or older at the time he committed the present offense; (2)

the present offense must be a crime of violence or controlled

substance offense; and (3) the defendant must have “at least two

prior felony convictions of either a crime of violence or a

controlled substance offense.”                       U.S.S.G. § 4B1.1(a).              The sole

issue on appeal is whether Davis’ prior state robbery offenses

qualify       as    “two      prior    felony    convictions”            as   defined    by    the

Guidelines.

       Under the Guidelines, the existence of two prior felony

convictions alone is not dispositive; the defendant must also

have     at    least       two       prior   sentences           for     those      convictions.

Specifically,         the       “two    prior        felony       convictions”        prong     is

satisfied if:              (1) the defendant has previously sustained at

least two felony convictions of either a crime of violence or a

controlled         substance         offense;    and       (2)    “the    sentences      for    at

least two of the aforementioned felony convictions are counted

separately.” U.S.S.G. § 4B1.2(c) (emphasis added).

       Davis        concedes          that      the        former        requirement--felony

convictions         of     either       a    crime         of    violence      or     controlled


                                                      5
substance--is    met       because       he   has       at    least    two     prior     robbery

convictions.         He    contends,       however,           the    latter       requirement--

separately     counted      sentences         for       the    convictions--is          not    met

because he received only one sentence for those convictions.

For the reasons that follow, we agree.

                                                B.

      First,    as    noted       above,      the       plain       language       of   U.S.S.G.

§ 4B1.2(c) requires that a defendant can only be sentenced as a

career   offender     if     he    received         “sentences        for     at    least     two”

prior felonies.           Davis received only one sentence for his prior

state felonies.

      Under North Carolina’s statutory provision for “[m]ultiple

convictions,” where an individual is convicted of more than one

offense, the general rule is that “all sentences of imprisonment

run   concurrently         with    any    other         sentences      of     imprisonment.”

N.C. Gen. Stat. Ann. § 15A-1340.15(a).                         There are two exceptions

to this general rule.             First, the court may impose a consecutive

sentence by     expressly         specifying            the   sentence       as    such.       Id.

Alternatively, the court may impose a consolidated sentence or

judgment:

      If an offender is convicted of more than one offense
      at the same time, the court may consolidate the
      offenses for judgment and impose a single judgment for
      the consolidated offenses. The judgment shall contain
      a sentence disposition specified for the class of
      offense and prior record level of the most serious
      offense, and its minimum sentence of imprisonment
      shall be within the ranges specified for that class of
      offense and prior record level, unless applicable


                                                    6
       statutes require or authorize another minimum sentence
       of imprisonment.

Id.    § 15A-1340.15(b)         (emphasis      added).     Thus,       when   a     North

Carolina court consolidates offenses for judgment, the outcome

is a single judgment for which the length of the sentence is

controlled by the maximum sentence for the most serious offense.

       For    his    prior   2004   and   2005      offenses,       Davis   received   a

“single judgment for [ ] consolidated offenses” pursuant to this

North Carolina statutory provision. Consequently, Davis came to

federal court with one consolidated sentence.

                                               C.

       Second, we have no published authority on whether a North

Carolina consolidated sentence is a single sentence or multiple

sentences under the Guidelines, and thus no published authority

suggesting      we     should      disregard       the   plain      meaning    of    the

Guidelines.

       The Government contends that we have decided this issue

before, stating that “[i]t is well established in this circuit

that   cases        consolidated    for   sentencing       under      North   Carolina

law[] yield multiple separate offenses as long as the offenses

were separated by an intervening arrest.”                      (Gov’t’s Br. at 8.)

In support, the Government cites to United States v. Huggins,

191    F.3d    532,    539   (4th    Cir.   1999),       and    a    few    unpublished

opinions.       But the latter are without precedential value, and

Huggins is clearly distinguishable.



                                               7
      In Huggins, the defendant argued that he was erroneously

sentenced    as     a    career   offender    because       his    two   prior   1987

convictions were “consolidated for sentencing,” and thus were

related offenses that counted together as a single offense.                        191

F.3d at 539.        We cited to the Guidelines commentary, which at

the time stated “‘[p]rior sentences are not considered related

if they were for offenses that were separated by an intervening

arrest.’”      Id.       (quoting   U.S.S.G.       § 4A1.2,    application       n.   3

(1999)).     Because Huggins was arrested for his first offense in

March 1987, a month prior to committing his second offense, we

found that there was an intervening arrest, and thus, his prior

offenses were not related and counted separately for purposes of

the career offender enhancement.

      Davis contends that Huggins is distinguishable because it

is based on the pre-2007 version of § 4A1.2, which turned on

whether the prior cases were “related.”                   Under the old rule, two

sentences consolidated for sentencing were related and counted

as one sentence, if the underlying offenses were not separated

by an intervening arrest.              We find that for purposes of this

case there is no substantive difference between the old rule and

the   new   rule,       which   provides   that     two    prior   sentences     count

separately    if    the     offenses   were       separated   by    an   intervening

arrest.     See U.S.S.G. § 4A1.2(a)(2).               Thus, Huggins cannot be

distinguished based merely on a nonpertinent change to the text

of the applicable rule.


                                              8
      The relevant distinction is that the defendant in Huggins

received    two    separate     sentences         for   his   two   prior     offenses,

notwithstanding the fact that the offenses were “consolidated

for   sentencing.”        The   prior     offenses       in   Huggins      occurred    in

1987, six years before North Carolina enacted the consolidated

sentence provision.        See N.C. Gen. Ann. Laws 1993, c. 538, § 1,

eff. Oct. 1, 1994; see also State v. Branch, 518 S.E.2d 213, 215

(N.C. Ct. App. 1999) (holding that as a matter of law, “offenses

that were committed prior to 1 October 1994, the effective date

of the Structured Sentencing Act,” cannot be consolidated for

judgment under the Act).          Thus, Huggins is inapposite because it

does not address the textual issue raised in this case, an issue

that could not have been raised at the time.

      The   term    “consolidated       for       sentencing”       as    addressed    in

Huggins     does    not    equate       to        “consolidated          sentence”    (or

“consolidated judgment”).          The distinction is not merely textual

or grammatical; the former is procedural, while the latter is

substantive.       When offenses are “consolidated for sentencing,”

the   consolidation       is     merely       a     procedural       mechanism       used

primarily out of concern for judicial economy and efficiency.

See, e.g., United States v. Cole, 857 F.2d 971, 974 (4th Cir.

1988) (“interests of judicial economy were furthered by [] joint

trial”).     Whereas, under North Carolina law, a “consolidated

sentence” is a mechanism that affects the substantive rights of

a defendant, and in some scenarios, could be beneficial to the


                                              9
defendant.      See State v. Tucker, 588 S.E.2d 853, 857 (N.C. 2003)

(consolidated judgments “work[] to the benefit of the defendant

by limiting the maximum sentence that he can receive for all of

the convictions so consolidated”) (citation omitted).                                 As such,

a     consolidated        sentence       is     distinct             from     a   consolidated

proceeding.

                                                 D.

       The language of the Guidelines is plain.                               It begins with

the    basic   principle         that   there     must         be     more    than   one    prior

sentence for the enhancement to apply.                              See U.S.S.G. § 4B1.2(c)

(laying out the “sentence” requirement in plural, as opposed to

singular, form).             In the absence of “multiple prior sentences,”

the existence of an intervening arrest is irrelevant.                                  See id.

§ 4A1.2(a)(2).

       We    hold        today    that        where        a        defendant     receives       a

“consolidated sentence” (or “consolidated judgment”) under North

Carolina law, it is one sentence and absent another qualifying

sentence, the enhancement is inapplicable.                                 In laying out this

principle, we adhere to and are constrained by “well-established

federalism principles [which] do not permit a federal court to

reject      North    Carolina’s       judgment        as       to    the    seriousness     of   a

North Carolina crime, prosecuted in a North Carolina court and

adjudicated         by   a    North     Carolina       judge,          merely     because    the

federal court might ‘expect’ a more serious punishment.”                                   United

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


                                                 10
      Applying     this     test,    we   find   that    the    career       offender

enhancement is inapplicable to Davis because the third prong of

the   career     offender    enhancement     requiring     “two    prior       felony

convictions,” as defined by the Guidelines, is not satisfied.

For   the   2004    and     2005    robberies,   Davis     received      a    single

consolidated      sentence.    Because     the   Government       failed      to   put

forth another qualifying sentence, it was error for the district

court to enhance Davis’ applicable guideline range and sentence

him as a career offender.

      To be clear, our decision does not turn on state law.                        See

United States v. Stewart, 49 F.3d 121, 123 n.3 (4th Cir. 1995)

(“A federal court construing the federal Sentencing Guidelines

need not turn to state law.”).              Instead, it rests on what the

plain language of the Guidelines demands.

      The Government contends that our interpretation belies the

policy goals of the Sentencing Commission as it would result in

sentencing disparities, i.e., some defendants would avoid the

career offender enhancement simply because of a state court’s

decision    to     consolidate      sentences,     while       other   defendants

without consolidated sentences would not be so lucky.                         We are

not persuaded.

      As a general matter, the plain meaning of the Guidelines

trumps policy considerations.              See United States v. Ron Pair

Enters., Inc., 489 U.S. 235, 240 (1989) (“The plain meaning of

legislation should be conclusive, except in the rare cases in


                                            11
which the literal application of a statute will produce a result

demonstrably    at    odds   with    the    intentions       of    its    drafters.”)

(internal quotation marks and alterations omitted).                         Moreover,

as   Davis   points   out,    there   are    other     mechanisms         within   the

Guidelines,    such     as    departures         and   variances,         which    the

Government could urge the sentencing court to apply, in order to

correct identified sentencing disparities.


                                           III.

      Based on our interpretation of the Guidelines, we conclude

that the district court erred in applying the career offender

enhancement    because       Davis    had    only      one        prior   qualifying

sentence, not two.       Accordingly, we vacate Davis’ sentence and

remand this matter for resentencing without the career offender

enhancement.


                                                         VACATED AND REMANDED




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