                                PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 12-4775


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

NORMAN ALAN KERR,

                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. (1:09-cr-00290-NCT-1)


Argued:   September 19, 2013                 Decided:   December 3, 2013


Before AGEE, DAVIS, and DIAZ, Circuit Judges.


Affirmed by published opinion.       Judge Diaz wrote the majority
opinion, in which Judge Agee        joined.   Judge Davis wrote a
dissenting opinion.


ARGUED: George Entwistle Crump, III, Rockingham, North Carolina,
for Appellant. Ripley Eagles Rand, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.    ON BRIEF:
Robert A. J. Lang, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina; Tammy
Chen Hsu, Second Year Law Student, WAKE FOREST UNIVERSITY SCHOOL
OF LAW, Winston-Salem, North Carolina, for Appellee.
DIAZ, Circuit Judge:

      A   jury    convicted     Norman     Alan    Kerr    of   possession        of    a

firearm after being previously convicted of a crime punishable

by imprisonment for a term exceeding one year, in violation of

18 U.S.C. § 922(g)(1).          The district court determined that Kerr

qualified as an armed career criminal under the Armed Career

Criminal Act (“ACCA”), 18 U.S.C § 924(e), and sentenced him to

268 months’ imprisonment.

      Kerr     raises   three    issues       in   this   appeal.          First,      he

contends that his prior North Carolina state convictions do not

qualify   as     predicate     felonies    for     sentencing      under    the     ACCA

because he was sentenced in the mitigated range--as opposed to

the   presumptive       range--of     punishment       under    North      Carolina’s

Structured     Sentencing      Act.      Second,    he    argues    that    the     same

reasoning precludes his § 922(g)(1) conviction, which similarly

requires a predicate felony offense.               Finally, Kerr asserts that

his   counsel      in    his     initial      appeal      rendered      ineffective

assistance by failing to challenge his conviction on the basis

that he lacked a predicate felony.                   We disagree with Kerr’s

first two arguments and find that the third one is moot.                               We

therefore affirm the district court’s judgment.




                                          2
                                       I.

      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),

924(e).     The indictment alleged that, for the 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.          The record establishes that Kerr

had   three      2008   North   Carolina    state   convictions      for   felony

breaking and entering. 1

      Following a jury trial, Kerr was convicted of possession of

a firearm by a convicted felon.             At his sentencing hearing, Kerr

objected to his designation as an armed career criminal under

§ 924(e), which required that Kerr have a combination of three

convictions for violent felonies or serious drug offenses.                    The

district court overruled the objection, relying on then-binding

precedent that a North Carolina state conviction constitutes a

crime punishable by a term of imprisonment exceeding one year

“if   any   defendant      charged   with    that   crime    could   receive    a

sentence of more than one year,” United States v. Harp, 406 F.3d

242, 246 (4th Cir. 2005), overruled by United States v. Simmons,

      1
       The indictment also alleges that Kerr had been convicted
of other crimes that were punishable by imprisonment for a term
exceeding one year. The government concedes, and we agree, that
Kerr could not have received a sentence in excess of one year
for those offenses.



                                       3
649 F.3d 237 (4th Cir. 2011) (en banc).                       As a result, the court

sentenced Kerr under the ACCA to 268 months’ imprisonment.

     Kerr appealed, arguing that the district court erred in

denying his motion to substitute counsel and in sentencing him

under the ACCA.              We placed the appeal in abeyance pending our

decision    on     rehearing        in    Simmons.         Our    en    banc   opinion      in

Simmons overruled Harp and held that a North Carolina conviction

is a crime punishable by a term of imprisonment exceeding one

year only if the particular defendant is eligible for such a

sentence,    taking          into   account        his    criminal      history     and    the

nature of his offense.              See 649 F.3d at 247 & n.9.

     We    subsequently         affirmed       the       district    court's      denial    of

Kerr's motion to substitute counsel and vacated Kerr’s sentence

because     Harp       was     no   longer      good       law.        With    respect      to

sentencing,      we     expressed        no   opinion      regarding      whether     Kerr’s

prior state convictions qualified as predicate felonies.

     On remand, Kerr’s counsel filed a motion asking the court

to vacate Kerr’s conviction and dismiss the indictment.                                Prior

to resentencing, the probation officer prepared a supplement to

the original presentence investigation report, concluding that

Kerr’s 2008 state breaking and entering convictions were each

punishable       by    a     presumptive      maximum       sentence      of   14    months’

imprisonment          and    thus    qualified       as     ACCA       predicates.         The

district court denied counsel’s motion to vacate and dismiss.

                                               4
Agreeing     that   the    prior   breaking         and    entering     convictions

qualified as ACCA-predicate crimes, the court again sentenced

Kerr to 268 months’ imprisonment.             This appeal followed.



                                     II.

                                         A.

        We review de novo the question of whether a prior state

conviction is a predicate felony for the purposes of federal

criminal law.       See United States v. Jones, 667 F.3d 477, 482

(4th Cir. 2012).      In order for a defendant to be sentenced as an

armed career criminal on a felon-in-possession conviction, the

defendant    must   have    a   combination         of    three    convictions       for

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

A violent felony is a crime of violence punishable by a term

exceeding one year of imprisonment.             18 U.S.C. § 924(e)(2)(B).

                                         B.

        To properly analyze Kerr’s arguments, we must first review

his 2008 state convictions under the sentencing regime mandated

by North Carolina’s statutory framework.

     North Carolina’s Structured Sentencing Act directs a judge

to impose felony sentences based on two criteria: the designated

offense class and the offender’s prior record level.                        N.C. Gen.

Stat.     § 15A-1340.13(b).        The       Act,    or    in     certain    cases    a

different statute, sets forth the offense class.                        Id. § 15A-

                                         5
1340.17(a).      The   sentencing      judge     calculates     the      offender’s

prior record level by adding the points assigned to each of the

offender’s prior convictions.         Id. § 15A-1340.14(a)-(b).

     Next, the judge matches the offense class and prior record

level using a statutory table, which provides three sentencing

ranges--a     mitigated     range,     a     presumptive       range,      and     an

aggravated    range.      Id.   § 15A-1340.17(c).        As    a    default,      the

judge sentences the defendant within the presumptive range.                       The

judge may deviate from the presumptive range, however, if the

judge    makes   written    findings        of   aggravating       or    mitigating

factors established by the Act, finds that aggravating factors

outweigh    mitigating     factors    (or    vice   versa),    and      chooses    to

depart from the presumptive range. 2             Id. §§ 15A-1340.13(e), 15A-

1340.16(b), (c).

     After    identifying       the   applicable     sentencing         range,    the

judge must select the defendant’s minimum sentence from within




     2
       With respect to the aggravated sentencing range, a judge
may depart only if the state has provided the defendant with
written notice of its intent to prove the necessary aggravating
factors at least 30 days before the trial or entry of a plea.
Id. § 15A-1340.16(a6).   Moreover, with two exceptions, a jury
must have found aggravating factors exist beyond a reasonable
doubt or the defendant must have pleaded to the existence of
those factors. See id. §§ 15A-1340.16(a)-(a1), (b).        With
respect to the mitigated sentencing range, the defendant bears
the burden of proving any mitigating factors by a preponderance
of the evidence. Id. § 15A-1340.16(a).



                                        6
that range. 3     Id. § 15A-1340.17(c).               Once the judge selects the

minimum     sentence,        separate     statutory        charts       provide      the

corresponding maximum sentence.            Id. § 15A-1340.17(d)-(e).

                                          C.

     We    turn   now   to    Kerr’s     three    2008    breaking      and   entering

convictions, which constituted Class H felonies.                     At the time of

sentencing for those state convictions, Kerr had a prior record

level of IV.      Pursuant to the statutory charts, he thus faced a

presumptive minimum term of 9 to 11 months' imprisonment and a

corresponding      presumptive          maximum       sentence     of    14   months’

imprisonment. 4

     The state sentencing judge found, however, that the factors

in   mitigation    outweighed       those        in    aggravation      and   that    a

mitigated sentence was justified.                 The judge then exercised her

discretion to depart from the presumptive range and sentenced

Kerr in the mitigated range.                The mitigated range included a

possible     maximum         sentence      of     11     months’        imprisonment.


     3
        In rare cases where the judge finds “extraordinary
mitigating factors,” the judge may impose a lesser sentence.
Id. § 15A-1340.13(g).   The judge does not have discretion to
impose a more severe sentence, however, even in extraordinary
cases. Simmons, 649 F.3d at 240 n.2.
     4
       After Kerr was sentenced for the three 2008 breaking and
entering convictions, the Act’s statutory charts were amended to
increase the maximum sentences. See Justice Reinvestment Act of
2011, 2011 N.C. Sess. Laws 192 §§ 2(e)-(f).



                                           7
Ultimately,     the    judge   sentenced   Kerr     to   8    to    10   months’

imprisonment.



                                    III.

                                     A.

      Kerr contends that because the state court judge chose to

sentence him in the mitigated range, he could not have been

sentenced to a term of imprisonment for greater than one year

for any of his three 2008 breaking and entering convictions. 5                As

a result, Kerr contends that he lacks the requisite predicate

felonies for sentencing as an armed career criminal under this

court’s reasoning in Simmons.

      Simmons did not, however, decide the precise issue before

us.     Rather, we considered there whether a prior North Carolina

state     conviction    for    marijuana   possession,       for    which    the

defendant faced no possibility of imprisonment, constituted an

offense    punishable    by    imprisonment   for   more     than    one    year,

thereby triggering a sentencing enhancement under the Controlled

Substances Act.        Simmons, 649 F.3d at 239.             A panel of this

court originally affirmed Simmons’s sentence in an unpublished

disposition, but the Supreme Court vacated that judgment and


      5
       Kerr does not contest that these convictions were for
crimes of violence.



                                      8
remanded    the    case        for     further    consideration           in     light     of

Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010).                                 Simmons,

649 F.3d at 239.

      In Carachuri-Rosendo, the question presented was whether a

lawful permanent resident of the United States was barred from

seeking    cancellation         of     removal    under      the    Immigration           and

Nationality      Act    (the    “INA”)     because      he    had    previously           been

convicted of an aggravated felony.                 130 S. Ct. at 2580.                As the

Court   explained,       the    INA     defined    an   “aggravated            felony”     to

include any crime “punishable as a federal felony” under the

Controlled Substances Act--i.e., a crime for which the “maximum

term of imprisonment authorized” exceeds one year.                             Id. at 2581

(internal quotation marks omitted).

      Carachuri-Rosendo          had    previously      been       convicted         of   two

misdemeanor drug possession offenses in Texas.                            Id. at 2580.

The   government       argued    nonetheless       that      Carachuri-Rosendo            had

been convicted of an aggravated felony because he hypothetically

could     have    received       a     two-year    sentence         for        his    second

misdemeanor offense if he had been prosecuted in federal court.

Id. at 2582.       This was true because a defendant may receive a

two-year maximum sentence under federal law for possession of

narcotics if the defendant has a prior drug conviction.                               Id. at

2581.



                                            9
     The   Court,     however,       rejected     this     hypothetical       approach,

reasoning that the statutory text “indicates that we are to look

to the conviction itself as our starting place, not to what

might have or could have been charged.”                   Id. at 2586.        Examining

Carachuri-Rosendo's         second      state    conviction,       the    Court      noted

that he was convicted of a misdemeanor simple drug possession

offense    without    any      finding   of     recidivism.     Id.       The    maximum

prison sentence authorized for such a conviction was one year.

Id. at 2581 n.4.          Therefore, the Court held that the petitioner

was “not actually convicted” of an offense punishable by a term

of imprisonment exceeding one year.                  Id. at 2586-87 (internal

quotation marks omitted).

     We subsequently determined that Carachuri-Rosendo required

us to vacate Simmons’s sentence.                 In reaching this conclusion,

we   explained   that       Carachuri-Rosendo        directly       undermined         our

earlier    decision       in     Harp.          Simmons,     649      F.3d      at    246.

Specifically,    we        determined         that   in     deciding         whether      a

sentencing    enhancement         was    appropriate       under    the      Controlled

Substances    Act,    a    district      court    could    no   longer       look    to   a

hypothetical defendant with the worst possible criminal history.

Instead, we held that a sentencing court may only consider the

maximum possible sentence that the particular defendant could

have received.       See id. at 247 & n.9.           Conducting that analysis,

we explained, “requires examination of three pieces of evidence:

                                          10
the offense class, the offender’s prior record level, and the

applicability of the aggravated sentencing range.”                         Id. at 247

n.9.

       Applying that analysis, we first found that Simmons was

convicted of a Class I felony and had a prior record level of I.

Id. at 240-41.      We explained that

       [u]nder the Act, a Class I felony is punishable by a
       sentence exceeding twelve months' imprisonment only
       if the State satisfies two conditions.     First, the
       State must prove (or the defendant must plead to)
       the existence of aggravating factors sufficient to
       warrant the imposition of an aggravated sentence.
       Second,   the   State  must  demonstrate    that   the
       defendant   possesses fourteen    or  more    criminal
       history points, resulting in a "prior record level"
       of at least 5. If the State fails to satisfy either
       of these conditions, a Class I offender can never
       receive more than one year's imprisonment.

Id. (internal citations omitted).                    Because the State satisfied

neither     condition,     id.    at    241,    we    held    that   Simmons’s    prior

North   Carolina    conviction          could   not    be     used   to   enhance   his

federal sentence,          see id. at 244.

       Following    our     decision       in    Simmons,       we    have     rejected

defendants’     arguments        that   they    lack    the    requisite      predicate

felonies because the actual sentence they received under North

Carolina law was less than a year of imprisonment.                           See, e.g.,

United States v. Edmonds, 679 F.3d 169, 176 (4th Cir.), vacated

on other grounds, 133 S. Ct. 376 (2012); United States v. Leach,

446    F.   App’x   625,    626     (4th    Cir.      2011)    (unpublished).        In


                                           11
Edmonds,      for     example,    the    defendant    argued     that    he   lacked   a

predicate felony offense because he actually received a sentence

of 9 to 11 months’ imprisonment. 6               679 F.3d at 176.         Edmonds had

a prior record level of IV, the offense was a Class H felony,

and there was no showing of aggravating factors.                    Id.       Under the

Structured          Sentencing    Act,     he    faced     a   maximum    presumptive

sentence of 14 months’ imprisonment.                 Id.

      We concluded that Edmonds had a qualifying predicate felony

because he “could have received” a sentence greater than one

year.     Id. at 176-77.          We reached the same result in Leach.              See

446 F. App’x at 626 (“[W]hile Leach was only sentenced to nine-

to-eleven months, his offense was punishable by more than twelve

months, as the state court had the discretion to sentence Leach

to a maximum sentence of eleven-to-fourteen months imprisonment

without       any    further     factual   or    legal     findings.”).        In   both

cases, the defendant was exposed to a sentence in excess of one

year even though he actually received a sentence of less than

one year.       The maximum sentence the particular defendant faced--

not     the    sentence        actually    imposed--controlled           whether     the

defendant had a qualifying predicate felony.




      6
       Edmonds conceded that one of his prior convictions at
issue was a qualifying predicate felony. 679 F.3d at 176.



                                            12
                                        B.

      Kerr’s appeal presents an issue that neither Simmons nor

its   progeny    expressly      address:      Must     a    district    court,   in

determining      whether   a    defendant    has     the    requisite   predicate

felonies for sentencing as an armed career criminal, consider

the fact that the defendant received a mitigated sentence of

less than one year in prison under North Carolina law for those

felonies?     To answer this question, we return to the Structured

Sentencing Act.

      As explained above, North Carolina law establishes three

sentencing ranges based on the appropriate offense class and

prior   record    level.       N.C.   Gen.   Stat.    § 15A-1340.17(c).          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.      Id.    §§ 15A-1340.13(e),      15A-

1340.16(b), (c); see also Simmons, 649 F.3d at 240.                     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.                     State v. Bivens, 573

S.E.2d 259, 261-62 (N.C. Ct. App. 2002).

      The state court judge who sentenced Kerr found that the

relevant mitigating factors outweighed those in aggravation and

                                        13
then chose to exercise her discretion by sentencing Kerr to a

mitigated range sentence of 8 to 10 months’ imprisonment for his

crimes.    But just as in Edmonds, the judge remained free at all

times to sentence Kerr to a presumptive prison term of up to 14

months.

     We have great respect for our distinguished colleague in

dissent.        But in focusing--we think myopically--on the actual

sentence 7 that Kerr received after the state judge weighed the

relevant factors in aggravation and mitigation, our friend seeks

to rewrite the teachings of Simmons and Edmonds.                  We, however,

are bound to apply the law as it exists, not as our colleague

would    like    it   to   be.   Because    the   maximum   possible    prison

sentence    that      Kerr   faced   for    his   prior   state    convictions

exceeded one year, and because that potential punishment was far

from hypothetical, 8 we hold that Kerr’s prior state convictions


     7
       The dissent says that it does not argue “for an assessment
of the defendant’s actual sentence” but rather “for an
assessment of the defendant’s actual sentencing range.”      Dis.
op. at 27 n.1.     In our view, however, this is a distinction
without a difference, as both are inconsistent with the
reasoning of Simmons and Edmonds.
     8
       Our holding today is not, as the dissent paints it, “Harp
redux,” nor is it parodoxical.     Harp summarily branded every
defendant facing an ACCA enhancement for his prior North
Carolina convictions as the worst possible offender under North
Carolina’s sentencing scheme.      While Simmons rejected that
hypothetical approach to federal sentencing, we subsequently
made clear “that the qualification of a prior conviction [as a
predicate offense] does not depend on the sentence [a defendant]
(Continued)
                                       14
qualify as predicate felonies for sentencing under the ACCA.

Our   holding     remains   faithful         to    our   directive     in     Simmons

requiring     that   sentencing       courts       examine    “three       pieces   of

evidence: the offense class, the offender’s prior record level,

and the applicability of the aggravated sentencing range,” 649

F.3d at 247 n.9.        The district court properly considered these

three elements and therefore did not err in sentencing Kerr as

an armed career criminal.



                                           IV.

      Kerr also contends that the district court erred in denying

his motion to vacate his § 922(g)(1) conviction and dismiss the

indictment,     again   because       he    lacked    the    requisite      predicate

felony offense. 9       In order for a defendant to be convicted of

possession of a firearm by a convicted felon, he must have been

previously      convicted   of    a    crime       punishable    by    a     term   of

imprisonment exceeding one year.                18 U.S.C. § 922(g)(1).




actually received but on the maximum sentence that he could have
received for his conviction.”   Edmonds, 679 F.3d at 176.    Our
decision today flows from a straightforward application of our
precedent.
      9
       We asked      the parties to brief whether the mandate rule
foreclosed the       district court, on remand, from considering
Kerr’s challenge     to his conviction. Both parties contend that
the mandate rule     does not foreclose this argument, and we agree.



                                           15
     As   we    have     already        explained,    Kerr    faced    a    presumptive

maximum    sentence      of       14    months’    imprisonment       for    his    state

convictions.      Therefore, Kerr has the requisite predicate felony

for his § 922(g)(1) conviction.                   We thus hold that the district

court    did   not     err    in       denying    Kerr’s    motion    to    vacate    his

conviction and dismiss the indictment.



                                             V.

     Finally, we asked the parties to brief whether Kerr’s prior

appellate      counsel       in    his    first    appeal    rendered       ineffective

assistance because he failed to challenge Kerr’s conviction on

the basis that Kerr lacked a predicate felony.

     When we remanded this case to the district court following

Kerr’s    first      appeal,       the     district    court    considered         Kerr’s

challenge to his conviction on the merits.                      And today we have

concluded that Kerr is not actually innocent of his § 922(g)(1)

conviction on the basis that he lacks a predicate felony.                            As a

result, Kerr’s contention that his prior appellate counsel was

ineffective for failing to raise this very issue in his first

appeal is now moot.




                                             16
                                     VI.

    For     the   reasons   given,   we    affirm   the   district   court’s

judgment.

                                                                     AFFIRMED




                                     17
DAVIS, Circuit Judge, dissenting:

     Respectfully, I dissent.

     The     majority      opinion      runs        counter    to   Supreme       Court

precedent, Carachuri-Rosendo v. Holder, 130 S. Ct. 27 (2010),

and effectively guts our Circuit precedent, United States v.

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

principles    of    comity    and       federalism       by     directing     federal

district courts to ignore the careful sentencing decisions of

their state counterparts. And it goes to such lengths all to

affirm a twenty-two-year sentence imposed on a fifty-one-year

old mentally ill veteran who had previously never served more

than ten months in prison, tagging him with the moniker “armed

career criminal.”       We can do much better than this.

     The   Armed    Career     Criminal        Act     requires     a   fifteen-year

minimum prison term for a defendant convicted of being a felon

in possession of a firearm if he had three previous convictions

“for a violent felony or a serious drug offense.” 18 U.S.C. §§

924(e)(1), 922(g). A “violent felony” is defined as, among other

things,    “any    crime    punishable         by    imprisonment       for   a   term

exceeding one year.” Id. § 924(e)(2)(B). The issue in this case

is: When a North Carolina state judge has made a finding that

mitigating factors are present and sufficient to outweigh any

aggravating    factors,     and   the    defendant’s          mitigated   sentencing

range for a North Carolina conviction therefore does not exceed

                                         18
one    year,      is     the   conviction       for   a    crime       “punishable    by

imprisonment for a term exceeding one year”?

       The answer is and should be no, but the majority answers

yes. It holds that federal courts should ignore the defendant’s

mitigated      range      of   imprisonment      as   determined        by   the   North

Carolina judge, N.C. Gen. Stat. § 15A-1340.16(b), and instead

look to the sentence the state judge could have imposed had she

decided,       hypothetically,        to    ignore        her    own    finding      that

mitigating circumstances justified a sentence in a range that

cannot exceed one year, ante, at 13. See N.C. Gen. Stat. § 15A-

1340.16(c).

       The majority’s answer is fantasy. It inserts an Alice-in-

Wonderland      analysis       into   what      should      be   a     straightforward

question of statutory construction. But most troubling about the

majority opinion is that it resurrects a speculative mode of

analysis that we – on the foundation of unmistakable Supreme

Court authority – discarded in Simmons, 649 F.3d at 237. A bit

of history illustrates why the majority opinion is déjà vu.

       In United States v. Harp, 406 F.3d 242, 245-46 (4th Cir.

2005), we held that a North Carolina conviction for possession

with intent to distribute marijuana was, for purposes of the

career offender Guideline, U.S. Sentencing Guideline § 4B1.1(a),

a     predicate        “controlled    substance       offense”         “punishable    by

imprisonment for a term exceeding one year.” Even though the

                                           19
defendant’s maximum possible punishment was only twelve months,

we   held   that    the   proper   inquiry   was      whether    a    hypothetical

defendant with the worst possible criminal history “could” have

received a sentence of over twelve months for committing the

same crime. Id. at 246. In other words, the key inquiry was:

What was a possible outcome for a hypothetical defendant who

committed the same crime?

       We rejected this speculative approach in Simmons, holding

that   “the   mere    possibility     that     [the    defendant’s]      conduct,

coupled with facts outside the record of conviction, could have

authorized a conviction of crime punishable by more than one

year’s imprisonment cannot and does not demonstrate that [the

defendant] was actually convicted of such a crime.” 649 F.3d at

244-45 (quotations and citations omitted) (emphasis added). The

district    court    in   Simmons,   relying    on    Harp,     had   applied   the

Controlled Substances Act sentencing enhancement; it found that

the defendant’s prior North Carolina conviction for marijuana

possession – for which he faced no possibility of imprisonment –

qualified as a felony drug offense “punishable by imprisonment

for more than one year,” 21 U.S.C. § 802(44). Id. at 240-41. We

vacated the defendant’s sentence and put an end to Harp. Id. at

241.

       The primary basis for our decision was Carachuri-Rosendo,

130 S. Ct. at 2577, a Supreme Court precedent involving the

                                      20
Immigration and Nationality Act. Simmons, 649 F.3d at 244-45.

The issue there was whether a Texas conviction for misdemeanor

possession     of       Xanax    without   a    prescription        qualified   as    an

“aggravated felony” punishable by imprisonment for more than one

year. Carachuri, 130 S. Ct. at 2580-81. The Fifth Circuit held

that it did; the Supreme Court reversed, holding that “the mere

possibility, no matter how remote,” that the defendant could

have received a two-year sentence had he been charged in federal

court for the same criminal conduct did not transform the Texas

conviction into an aggravated felony. Id. at 2583.

      Carachuri         involved    a   different       statutory     scheme    and   an

analysis with multiple layers of speculation, but we concluded

in   Simmons      that     the     relative     simplicity     of    the   Controlled

Substances Act analysis did “not render the Carachuri holding

inapplicable.” Simmons, 649 F.3d at 248. Instead, we construed

Carachuri as a prohibition on considering “facts not at issue in

the crime of conviction” in determining whether a conviction

qualifies    as     a    predicate      felony.   Id.    at   248    (quotations      and

citation omitted).

      Which brings me to this case: It is difficult to see how

the majority’s hypothetical mode of analysis does not run square

into the teeth of what Carachuri and Simmons seek to prohibit.

As the majority opinion makes clear, the North Carolina state

judge acted consistent with the provisions of the North Carolina

                                           21
Structured    Sentencing         Act:   she     made   a    finding   that     Kerr’s

mitigating factors outweighed those in aggravation, N.C. Gen.

Stat. § 15A-1340.16(b); Kerr had to prove those findings by a

preponderance     of   the       evidence,       id.   §    15A-1340.16(a);       her

mitigation finding was – and had to be – in writing and part of

the record, id. § 15A-1340.16(c); and she used the mitigation

finding to arrive at a sentencing range of eight to ten months,

as contemplated by North Carolina law.

     Despite all of this, the majority concludes that Kerr’s

conviction was for a “crime punishable by imprisonment for a

term exceeding one year” because the North Carolina state judge

“may,” ante, at 13, have nonetheless imprisoned Kerr for up to

fourteen     months.   In    other        words,   Harp     redux:    “[T]he      mere

possibility, no matter how remote,” Carachuri, 130 S. Ct. at

2583,   coupled    with     an    analysis      that   ignores   a    fact   in    the

record, is sufficient to conclude that Kerr could have received

a sentence of over one year. In doing so, it transforms Kerr

into an armed career criminal deserving of a minimum of fifteen

years of “3 hots and a cot,” People v. Shulman, 843 N.E.2d 125,

134 (N.Y. 2005), on the tab of United States taxpayers.

     The majority responds to all this with a paradox: first, it

says that the issue in this case was not before us in Simmons,

ante,   at   13   (“Kerr’s       appeal    presents    an    issue    that   neither

Simmons nor its progeny expressly addressed”); second, it says

                                           22
that a footnote in Simmons resolves this case, ante, at 15 (“Our

holding remains faithful to our directive in Simmons requiring

that sentencing courts examine ‘three pieces of evidence: the

offense      class,        the    offender’s          prior    record         level,    and     the

applicability of the aggravated sentencing range,’ 649 F.3d at

247 n.9.”).

       Let’s unscramble that egg:                      The     majority’s         position       is

that    although      Simmons          does    not    mandate        a    particular      outcome

here,     its       “directive”         is     nonetheless           consistent        with     the

majority’s decision. Wrong on both counts. But, even if Simmons

were    deemed       in    some       sense    “consistent”           with      the    majority’s

decision,       the       decision      I     reach    is     equally         “consistent”      and

achieves the more sensible result.

       The    majority’s          first       argument,        that       Simmons      does     not

mandate a particular outcome here, is incorrect because it is

based   on      a   misunderstanding            of    the     issue      in    this    case.    The

majority      frames        the       issue    as:     “Must    a        district      court,    in

determining         whether       a    defendant       has     the       requisite      predicate

felonies for sentencing as an armed career criminal, consider

the fact that the defendant received a mitigated sentence of

less than one year in prison under North Carolina law for those

felonies?” Ante, at 13 (emphasis added). That framing subtly

misconstrues the issue in this case: it is not the “fact” of the

defendant’s actual sentence that is relevant or the focus of

                                                 23
this analysis, but the defendant’s actual sentencing range. The

North Carolina state court judge made an express finding – a

real-world fact - that mitigating factors outweighed those in

aggravation;       indeed,    she    made      that      finding       because      it    is    a

predicate to sentencing in the mitigated range. N.C. Gen. Stat.

§ 15A-1340.16(b).

      The majority’s framing of the issue seems to be based on a

peculiar     understanding          of     the        North      Carolina         Structured

Sentencing Act: it thinks that a North Carolina judge is always

in   the   presumptive       range    because         she   has      the    discretion         to

sentence    in   that     range     even      after      she’s    made      the   mitigation

finding. State v. Bivens, 573 S.E.2d 259, 262 (N.C. Ct. App.

2002).

      Although     the    majority       is    correct        that     a    North   Carolina

judge    retains    the    discretion         to    sentence      in       the    presumptive

range even when the judge finds several mitigating factors, the

existence of that possibility alone is an insufficient basis for

ignoring the range as determined according to the North Carolina

Structured Sentencing Act. We said as much in Simmons: North

Carolina    judges        always     have          the    discretion         to     use    the

presumptive range even after the state has proven the existence

of aggravating factors, N.C. Gen. Stat. § 15A-1340.16(a), but we

stated that federal district courts should pay close attention

to the actual presence and proof of those aggravating factors,

                                              24
rather than some hypothetical analysis, because it is a more

coherent    and    just   analysis      that        better       informs     whether     a

defendant is deserving of a major imprisonment term. Simmons,

649 F.3d at 244-45, 247 n.9. In the face of this, the majority

opinion is silent on why the judge’s retained discretion renders

her decision to affirmatively make the mitigation finding and to

impose a sentence based on that finding a legal nullity. If

anything,     we   should   honor      the     judge’s           mitigation     finding

because, as the counterpart to the aggravation finding, it is a

predicate to deviating from the presumptive range (in this case,

to the mitigated range). N.C. Gen. Stat. § 15A-1340.16(b).

     In     Carachuri,    the     Court      acknowledged          that      Texas     law

afforded prosecutors broad discretion in determining whether to

seek a conviction whose punishment would satisfy an element of

federal law (there, in the immigration context); nevertheless,

that fact did not persuade the Court to base its analysis of

federal law on the existence of such discretion. See 130 S. Ct.

at 2588. It is unclear to me why, if the existence of state

prosecutorial      discretion     is   not     an    acceptable       basis     for     an

interpretation      of    federal      immigration           law    that     leads      to

draconian     outcomes,     the     existence         of     a     similar     judicial

discretion should permit an interpretation of federal sentencing

law that, correspondingly, leads to draconian outcomes, as the

majority concludes here. Paradox, indeed.

                                        25
       The   majority’s       approach      builds     an    unwarranted     asymmetry

into our treatment of North Carolina convictions, where we pay

special attention, if not conclusive attention, to a finding of

aggravation,        but     purposely       ignore      a    judge’s       finding    of

mitigation.     To        build    our   jurisprudence         on    this    asymmetry

expresses the view that federal sentencing courts do not really

care about a defendant’s criminal background – or at least, they

only care when it offers up the opportunity to send him to

prison for a longer period of time than common sense and simple

justice demand.

       The majority’s second argument is that its holding “remains

faithful to our directive in Simmons requiring that sentencing

courts examine ‘three pieces of evidence: the offense class, the

offender’s    prior       record    level,       and   the   applicability      of   the

aggravated sentencing range,’ 649 F.3d at 247 n.9,” ante, at 15.

This    protestation        is    unavailing.      Indeed,     what    a    member   of

today’s majority said in railing against the en banc majority in

Simmons applies with genuine force here: “The majority opinion

puts great weight on footnote [9] of [Simmons] to undergird its

position; but that weight is more than the footnote can bear.”

Simmons, 649 F.3d at 255 (Agee, J., dissenting). The core of

Simmons is (obviously) its holding, informed by Supreme Court

precedent,     of    how     the    “mere    possibility”       of     a    defendant’s

conduct, “coupled with facts outside the record of conviction,”

                                            26
was insufficient for concluding that a conviction was punishable

by   more   than    one    year’s    imprisonment.          649      F.3d    at    244-45

(quotations      and     citations    omitted)           (emphasis      added).         The

majority today makes that line of inquiry sufficient: Kerr’s

criminal conduct, coupled with the “mere possibility” that a

judge could      have    exercised   her      discretion        to   ignore       her   own

finding     of   mitigation     (a   real-world          fact     in   the    record),

transforms Kerr’s conviction from one for which he could only

receive     eight   to    ten   months        into   a    “crime       punishable        by

imprisonment for a term exceeding one year.” Id. § 924(e)(2)(B). 1

Because such an analysis is contingent on too many assumptions,

it is quintessentially “hypothetical” and therefore foreclosed

by Simmons and Carachuri.

     The majority’s constricted reading of Simmons stems from

its refusal to acknowledge the principles that animated the core


     1
       The majority is determined to hang its hat on United
States v. Edmonds, 679 F.3d 169, 176-77 (4th Cir. 2012), for the
proposition that “the actual sentence” a defendant receives is
not the relevant point of analysis, ante, at 11-12. Edmonds is
irrelevant because it did not involve a defendant who had
received a mitigation finding. Edmonds, 679 F.3d at 176-77. And
I am not arguing “myopically,” ante, at 14, for an assessment of
the defendant’s actual sentence; I am arguing for an assessment
of the defendant’s actual sentencing range. The majority says
this is a “distinction without a difference,” ante, at 14 n.7.
Of course, if the majority is comfortable contravening the
finding of a state court judge in a state court conviction
sustained pursuant to a state statute, then I suppose the
distinction is probably one without a difference.


                                         27
holding     of    Simmons:         “well-established              federalism      principles”

that prohibit federal courts from “reject[ing] 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,”         Simmons,      649    F.3d     at     249;    deference      to   the

North      Carolina          legislature’s        “carefully            crafted    sentencing

scheme,”     id.        at     249-50;      and       an    unwillingness          to    permit

peculiarly harsh, “counter-intuitive and unorthodox” results in

federal sentencing, id. (quoting Carachuri, 130 S. Ct. at 2585).

The majority’s decision is violative of all three principles: it

contravenes principles of federal respect for state judges and

their assessment of offenders, the convictions those offenders

incur, and the just sentences they deserve; it re-writes for

purposes of federal law a carefully-crafted state statute; and

it results in preposterous sentences.

      It    is    the    last      point    that      resonates         most.    The    majority

opinion     is    profoundly         wrong       on   the       law.     But    what    is    most

concerning is how completely untethered its analysis is from the

task before federal district judges in these cases: to decide

who should be treated as a repeat offender responsible for a

disproportionately large percentage of violent crimes, i.e., an

armed career criminal. See United States v. Hawkins, 811 F.2d

210, 216-17 (3d Cir. 1987) (discussing the legislative history

of   the    precursor         to    the    current         form    of    the    Armed     Career

                                                 28
Criminal Act). For example, suppose a petty criminal receives a

mitigation finding because he proved to the North Carolina state

judge   by   a   preponderance   of    the   evidence    that   he   was   under

coercion when he committed the crime, N.C. Gen. Stat. § 15A-

1340.16(e)(1), or was of limited mental capacity, id. § 15A-

1340.16(e)(4), or was a minor, id. § 15A-1340.16(e)(6). Suppose

also that the North Carolina judge, after determining that those

mitigating factors outweigh those in aggravation, concludes that

the defendant’s range is eight to ten months. The majority’s

decision today tells federal district courts to repudiate that

finding and treat that defendant as if he were the mastermind of

the crime, a criminal genius, or an adult, and impose a fifteen-

year minimum sentence (or something closer to the twenty-two

year    sentence    imposed   here).    These     results    were    not   what

Congress intended. Overreaching by federal prosecutors, who are

sometimes anxious to wield their “armed career criminal” lancets

willy-nilly, see United States v. Foster, 662 F.3d 291, 301 (4th

Cir. 2011) (Wynn, J., dissenting); United States v. Foster, 674

F.3d 391, 398 (4th Cir. 2012) (Motz, J., dissenting from the

den. of reh’g); id. at 403-04 (Davis, J., dissenting from the

den. of reh’g), should not be rewarded in this manner.

       And even if there were a colorable argument that Congress

intended these types of results, the rule of lenity requires

much    better     evidence   before        adoption    of   the     majority’s

                                       29
construction of the Armed Career Criminal Act. At best, it is

not at all clear what Congress wants federal courts to do with

these     peculiar    wrinkles      in        North      Carolina’s    Structured

Sentencing Act, and we should not render a construction that

increases the penalty on a defendant when that construction is

“based on no more than a guess as to what Congress intended.”

Ladner v. United States, 358 U.S. 169, 178 (1958). The Armed

Career     Criminal    Act    has    proved           enormously      complex     in

application;    trying   to   decide          how   it   should    interact     with

equally complex state sentencing regimes is akin to proclaiming

mastery at reading tea leaves. See United States v. Rodriquez,

553 U.S. 377, 405 (2008) (Souter, J., dissenting) (arguing for

application of the rule of lenity to the Armed Career Criminal

Act). 2 Rather than boldly continue down this dreary path, we




     2
         As Justice Souter explained:

          The rule [of lenity] is grounded in “the
     instinctive distaste against men languishing in prison
     unless the lawmaker has clearly said they should,” and
     we have used it to resolve questions both about metes
     and bounds of criminal conduct and about the severity
     of sentencing. This policy of lenity means that the
     Court will not interpret a federal criminal statute so
     as to increase the penalty that it places on an
     individual when such an interpretation can be based on
     no more than a guess as to what Congress intended.

United States v. Rodriquez, 553 U.S. 377, 405-06 (2008) (Souter,
J., dissenting) (citations omitted). See also United States v.
Granderson, 511 U.S. 39, 54 (1994) (“[W]here text, structure,
(Continued)
                                         30
should exercise judicial restraint by holding that the statute’s

ambiguity coupled with the rule of lenity tips the scales in

favor     of     the        defendant,      thereby        allowing         Congress      the

opportunity to provide us with additional guidance, which is so

sorely needed.

      Whether     a    prior    state      judge    has    made    a   written       factual

finding that the circumstances in a particular case are atypical

and warrant application of a mitigated sentencing range that by

definition does not exceed one year is a highly relevant data

point    in    assessing      whether      an    individual      is    an    armed   career

criminal. The majority does not think so; it is wrong. But the

true error it commits is justifying its decision by sticking its

head in the sand of legal artifice.

      I am willing to believe, and to act on the belief, that “no

one - not even the prosecutors themselves - thinks [a twenty-

two-year sentence on a fifty-one-year-old mentally ill veteran

is]   appropriate”          under    the   circumstances          of   this    case.      Cf.

United    States       v.    Kupa,   ---    F.     Supp.    2d    ---,      ---,   2013   WL

5550419, at *1 (E.D.N.Y. Oct. 9, 2013). The law affords us an

opportunity to decide this case on that belief. I deeply regret

the institutional ennui that precludes our doing so.



and history fail to establish that the Government’s position is
unambiguously correct . . . we apply the rule of lenity.”).


                                            31
