                                 PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                                No. 10-6929


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JOSEPH K. NEWBOLD,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:05-cr-00262-TDS-1; 1:08-cv-00698-TDS-PTS)


Argued:   March 24, 2015                        Decided:     June 30, 2015


Before KING and      GREGORY,    Circuit     Judges,   and   DAVIS,   Senior
Circuit Judge.


Vacated and remanded by published opinion. Judge Gregory wrote
the opinion, in which Judge King and Senior Judge Davis joined.


ARGUED: Ashley N. Waring, WAKE FOREST UNIVERSITY SCHOOL OF LAW,
Winston-Salem, North Carolina, for Appellant.   Michael Francis
Joseph, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.    ON BRIEF: John J. Korzen, Director,
Kathleen A. Bradway, Third-Year Student, Appellate Advocacy
Clinic, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem,
North Carolina, for Appellant.      Ripley Rand, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
GREGORY, Circuit Judge:

     Joseph Newbold pleaded guilty in 2005 to being a felon in

possession      of   a    firearm.       At   sentencing,       the    district     court

found    he    possessed      three      prior    North       Carolina    state     court

convictions that triggered enhancements under the Armed Career

Criminal Act (ACCA), including a fifteen-year mandatory-minimum

prison    term.          Newbold    objected      that   at    least     one   of   these

convictions should not have been considered a predicate “serious

drug offense” because it was not punishable by a term of ten

years of imprisonment.             On this basis, he continued to challenge

his designation as an armed career criminal on direct appeal, by

28 U.S.C. § 2255 motion, and by petition to the Supreme Court.

The Supreme Court granted Newbold’s petition and vacated our

decision affirming the district court’s denial of the § 2255

motion.       It remanded the case to us for consideration in light

of Miller v. United States, 735 F.3d 141 (4th Cir. 2013), which

declared United States v. Simmons, 649 F.3d 237 (4th Cir. 2011)

(en banc), retroactively applicable on collateral review.

     For the reasons that follow, we conclude that, pursuant to

Miller,    a    petitioner         may   challenge       on    collateral      review   a

Simmons error resulting in his erroneous designation as an armed

career criminal.           We deny the government’s motion to remand the

case to the district court, and we vacate Newbold’s sentence and

remand for further proceedings consistent with this opinion.

                                              2
                                             I.

     On       September       8,      2005,       Newbold    pleaded        guilty       to

distributing        5.3    grams    of    5-Methoxy-alpha-methyltryptamine               in

violation      of     21    U.S.C.        § 841(a)(1);      money    laundering         in

violation of 18 U.S.C. § 1956(a)(3)(B); and possessing a firearm

in   violation       of     18     U.S.C.     § 922(g)(1).          The     Presentence

Investigation Report (PSR) grouped the three counts and used the

felon    in   possession         count,     because    it   produced       the   highest

adjusted offense level, to determine the Sentencing Guidelines

calculations for the group.                 After a three-level reduction for

acceptance      of   responsibility,          the    PSR    calculated      an    offense

level of 31 and a criminal history category of VI.                               Although

Newbold also qualified as a career offender, the PSR used the

armed career criminal Guideline because it resulted in a higher

offense level.            See U.S.S.G. § 4B1.4(b).            The PSR cited three

North    Carolina     convictions         from    1980,    1981,   and    1984    as    the

basis for enhanced penalties under 18 U.S.C. § 924(e) and the

corresponding Section 4B1.4 of the Guidelines. 1                          It therefore

recommended a range of 188-235 months, or 15.7-19.6 years, while

also noting a statutory mandatory-minimum prison term of fifteen

years.        Newbold       entered      written      objections    to      these      ACCA

enhancements, which the district court overruled.                         He received a

     1 These convictions were docket numbers 79CRS46698                                from
1980, 81CRS17405 from 1981, and 83CRS75483 from 1984.


                                              3
sentence of 225 months’ imprisonment, or 18.8 years, on each

count to run concurrently, followed by three years of supervised

release on the first two counts and five years on the third

count.

     Newbold      appealed        the       armed     career   criminal        designation,

among other issues.            He argued as he had below that his previous

convictions should not count as ACCA predicates.                            United States

v. Newbold, 215 F. App’x 289, 297 (4th Cir. 2007) (unpublished).

The ACCA’s fifteen-year, mandatory-minimum applies to anyone who

violates § 922(g) and has three previous serious drug offense

convictions.           See   18      U.S.C.      § 924(e)(1);       see    also      U.S.S.G.

§ 4B1.4 (establishing minimum offense level and criminal history

category    for    any       defendant        “who     is   subject    to      an    enhanced

sentence under the provisions of 18 U.S.C. § 924 [a]s an armed

career     criminal”).            “Serious           drug   offense”      is   defined      in

pertinent     part      as     “an        offense      under   State      law,      involving

manufacturing,         distributing,             or    possessing      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)           (emphasis

added).     Newbold contended that, for each previous conviction,

he   received      a     statutorily-prescribed,               presumptive           term   of




                                                 4
imprisonment of less than ten years. 2                       Newbold, 215 F. App’x at

297-98.        Since     there    were    no    aggravating        factors       present   in

those cases that could have subjected him to punishment above

the presumptive term, he argued the crimes were not serious drug

offenses.      Id.

     Applying         United     States    v.       Harp,    406   F.3d    242    (4th   Cir.

2005),    we     found    Newbold’s       argument          “clever”      but    unavailing.

Newbold, 215 F. App’x at 298.                        In this pre-Simmons era, we

adhered     to     the     now-defunct          rule        that   Newbold’s       previous

convictions could be considered punishable by ten years if the

sentencing law allowed for the possibility of any defendant –

such as a defendant with the worst possible criminal history –

to be sentenced to ten years’ imprisonment for the same crime,

regardless       of      the     maximum        punishment         applicable       to     the

circumstances of the instant defendant.                       See id.; Harp, 406 F.3d

at 246.        In 2008, Newbold raised the same challenge in his

§ 2255 motion to vacate his sentence, which was denied a year

later while Harp was still good law.                        Newbold v. United States,

Nos. 1:08CV698, 1:05CR262-1, 2009 WL 2243642 (M.D.N.C. July 27,

2009).

     2 In our earlier opinion, we mistakenly wrote that Newbold’s
previous drug convictions “each carried a presumptive penalty of
no more than six years.”    Newbold, 215 F. App’x at 297.     The
presumptive term for each Class H felony was in fact three
years.   See N.C. Gen. Stat. § 15A-1340.4(f)(6) (1983) (repealed
effective Oct. 1, 1994).


                                                5
       Newbold appealed the district court’s denial of his § 2255

motion in the midst of several changes to our Circuit precedent.

First, we overruled Harp in Simmons.                649 F.3d at 241.        Simmons

presented the question of whether that defendant’s previous drug

crime counted as a predicate “felony drug offense” under the

Controlled Substances Act (CSA), which is defined as an “offense

that is punishable by imprisonment for more than one year.”                      Id.

at 239 (quoting 21 U.S.C. § 802(44)).                 The maximum aggravated

penalty Simmons could have received as a first-time offender was

eight months of community punishment.               Id. at 241.        But, had he

been   a   recidivist,      and   had    certain    aggravating       factors    been

present, Simmons could have received a sentence exceeding twelve

months’ imprisonment under state law.                Id. at 240-41.         Relying

on the reasoning in Carachuri-Rosendo v. Holder, 560 U.S. 563

(2010),    we   rejected      the       argument    that    these     hypothetical

aggravating factors made his offense “punishable” by more than

one year in prison.         Simmons, 649 F.3d at 243-45.               We held his

conviction could not be considered a CSA predicate triggering

that statute’s mandatory-minimum term of imprisonment.                      See id.

at 247.

       Thereafter,     in    2011,       we   granted       Newbold     a   partial

certificate     of   appealability       on   the   issue    of   whether   he   was

entitled to relief in light of Carachuri-Rosendo, as applied in

Simmons.      However, we were forced to subsequently affirm the

                                          6
denial   of   his    motion     to   vacate    because,     after   granting     the

certificate, we decided in United States v. Powell, 691 F.3d 554

(4th Cir. 2012), that Carachuri-Rosendo was not retroactively

applicable on collateral review.              691 F.3d at 559-60.        That left

Newbold with a last chance to petition the Supreme Court for

certiorari, which he did in May 2013.                   In another twist, while

that petition was pending, we decided Miller v. United States,

735 F.3d 141 (4th Cir. 2013), which declared that Simmons was

retroactive.        Id. at 146 (explaining that Simmons altered the

class    of   persons    that    the   law    punishes     to   announce    a   new,

substantive rule).

     On January 13, 2014, the Supreme Court granted Newbold’s

petition and remanded to this Court for further consideration in

light of Miller.          Newbold v. United States, 134 S. Ct. 897

(2014)    (mem.).       Thus    presented,     somewhat     miraculously,       with

Newbold’s     timely     § 2255      petition,     we     granted   an     expanded

certificate     of     appealability 3       and   appointed     counsel.        The

government subsequently submitted a motion to remand the case to

the district court to resolve the issue in the first instance,

     3 In addition to reconsideration in light of Miller, the
certificate also instructed the parties to address the potential
effect, if any, of the original panel opinion in Whiteside v.
United States, 748 F.3d 541 (4th Cir. 2014), which had not yet
been reversed en banc, 775 F.3d 180 (4th Cir. 2014).      The en
banc opinion in Whiteside, which never reached the question of
whether sentencing errors are cognizable on collateral review,
does not affect this case.


                                         7
on     which     we   reserved    a        decision    pending     oral     argument.

Considering the lengthy history of Newbold’s case, and that we

have everything before us to decide this purely legal question,

we deny the government’s motion.


                                            II.

       The     government   concedes,        as   it   must,    that    Simmons   is   a

retroactively applicable, substantive rule of law.                        Miller, 735

F.3d at 147.          Still, we must ensure that the sentencing error

Newbold seeks to challenge is cognizable on collateral review.

We determine it is.

       Section 2255 allows a federal prisoner to move to set aside

a sentence on the grounds “that the sentence was imposed in

violation of the Constitution or laws of the United States, or

that the court was without jurisdiction to impose such sentence,

or that the sentence was in excess of the maximum authorized by

law, or is otherwise subject to collateral attack.”                         28 U.S.C.

§ 2255(a).        Importantly, the statute “was intended to afford

federal prisoners a remedy identical in scope to federal habeas

corpus.”       Davis v. United States, 417 U.S. 333, 343 (1974); see

also United States v. Hayman, 342 U.S. 205, 219 (1952) (“Nowhere

in the history of Section 2255 do we find any purpose to impinge

upon     prisoners’      rights       of     collateral        attack    upon     their

convictions.”).         A non-constitutional error, however, may only


                                             8
serve    as     a   basis    for       collateral       attack    when    it    involves    “a

fundamental         defect      which     inherently        results       in    a    complete

miscarriage of justice.”                 United States v. Addonizio, 442 U.S.

178, 185 (1979) (internal quotation marks omitted); see also

Hill v. United States, 368 U.S. 424, 428 (1962).

     Our      Circuit       has    not    yet    defined    the    entire       universe    of

errors qualifying as “fundamental defects.”                        On the one hand, we

know that a post-conviction change in the law that renders the

defendant’s         conduct       no    longer       criminal    can     be    corrected    by

§ 2255 motion.          See Davis, 417 U.S. at 346-47; see also Miller,

735 F.3d at 142.            At the other end of the spectrum, we have held

that “ordinary misapplication of the guidelines . . . does not

amount     to       a   miscarriage        of        justice.”         United    States     v.

Mikalajunas, 186 F.3d 490, 496 (4th Cir. 1999).                               It is unclear

what might constitute an extraordinary misapplication, but we

have recently held that a mistaken career offender designation

is not cognizable on collateral review.                           See United States v.

Foote, ___ F.3d ___, No. 13-7841, 2015 WL 1883538, at *1 (4th

Cir. Mar. 25, 2015); id. at *9-*11 (recognizing as cognizable on

collateral review those sentencing errors, post-Booker v. United

States, 543 U.S. 220 (2005), in cases of actual innocence and

sentences issued above the statutory maximum).

     This       case     does     not    present        another    occasion         to   debate

whether a mistake made in calculating a defendant’s advisory

                                                 9
Guidelines      range       results    in     a     fundamental      miscarriage       of

justice.      Here, Newbold challenges not a Guidelines error, but

his erroneous designation as an armed career criminal under the

ACCA.      The career offender Guideline was never used to calculate

his     sentencing    range.          And,        his   case    lacks     the   pitfalls

preventing     us    from    providing       relief     to     previous    petitioners,

like Deangelo Whiteside. 4            He is not in procedural default.                The

government does not present, and we are not aware of, any other

potential ACCA predicate offenses in his criminal history. 5                          Had

the district court not found Newbold an armed career criminal,

the       circumstances       of      his     sentencing         would      have     been

significantly different.           Newbold would not have been subject to

a fifteen-year mandatory-minimum term of imprisonment.                             See 18

      4 We refused to equitably toll AEDPA’s statute of
limitations for Whiteside, 775 F.3d at 186, even despite the
Supreme Court’s emphasis on the need for “flexibility” and
“avoiding mechanical rules” in a court’s exercise of its
equitable powers, Holland v. Florida, 560 U.S. 631, 650 (2010)
(internal quotation marks omitted).
      5 In United States v. Pettiford, 612 F.3d 270 (4th Cir.
2010), we concluded that a petitioner could not establish that
his sentence was unlawful because vacatur of two prior
convictions did not render his ACCA sentence invalid in light of
three remaining predicate convictions in his record.      Id. at
277-78.    While Newbold’s PSR indicated he might possess more
than three qualifying serious drug offenses, the government
points to none.   We note that the only other felony controlled
substance offense in Newbold’s record occurring on a date
separate from those on which the alleged predicate offenses
occurred is a 1984, Class I felony for which the maximum penalty
was five years’ imprisonment.     N.C. Gen. Stat. § 14-1.1(a)(9)
(1981) (repealed effective Oct. 1, 1994).


                                             10
U.S.C. § 924(e)(1).                He would have been subject to a ten year

maximum       term     on    the     felon    in     possession        count.         See    id.

§ 924(a)(2).

      Accordingly, Newbold’s § 2255 motion exposes the sentence

he received on the felon in possession count as an illegal one.

On this count, the district court imposed 225 months, or 18.8

years.        However,        had    Newbold       been    convicted      under       § 922(g)

without       three    previous       serious       drug   offenses,       he   would       have

faced     a   statutory       maximum        penalty      of    10    years.      18   U.S.C.

§ 924(a)(2).          Such circumstances, where “a change in law reduces

the   defendant’s           statutory      maximum     sentence        below    the    imposed

sentence,       have    long        been   cognizable          on    collateral    review.” 6

Welch v. United States, 604 F.3d 408, 412-13 (7th Cir. 2010),


      6We further note that the district court was simultaneously
presented with a Guidelines range of 188-235 months, or 15.7-
19.6 years, and what it thought was a statutory, fifteen-year
mandatory-minimum term.     This erroneously-imposed sentencing
floor is problematic on its own. See Alleyne v. United States,
133 S. Ct. 2151, 2160 (2013) (“It is impossible to dissociate
the floor of a sentencing range from the penalty affixed to the
crime.”).    In particular, it created the mistaken impression
that the district court had no discretion to vary downward from
the low end of Newbold’s range. See Hicks v. Oklahoma, 447 U.S.
343, 346 (1980) (holding that a defendant has a “substantial and
legitimate expectation” under the Fourteenth Amendment to be
deprived of his liberty only to the extent determined by the
trier of fact “in the exercise of its statutory discretion”);
cf. Brown v. Caraway, 719 F.3d 583, 588 (7th Cir. 2013)
(permitting challenge to a career offender designation from the
pre-Booker era, when the Sentencing Guidelines had the force of
law, as a “fundamental defect that constitutes a miscarriage of
justice” in a § 2241 proceeding).


                                               11
cert    denied,    131       S.    Ct.    3019     (2011);         see    also    28     U.S.C.

§ 2255(a)    (permitting           petitioner       to     seek      relief      where       “the

sentence was in excess of the maximum authorized by law”).                                     It

is     axiomatic      that         “there       are      serious,         constitutional,

separation-of-powers concerns that attach to sentences above the

statutory maximum penalty authorized by Congress,” for it is as

if the defendant “is being detained without authorization by any

statute.”     Bryant v. Warden, 738 F.3d 1253, 1283 (11th Cir.

2013),    reh’g    en     banc      denied,        (11th      Cir.    2014).           Thus,    a

defendant    who    “does         not    constitute      an    armed      career       criminal

. . . [has] received a punishment that the law cannot impose

upon him.”        United States v. Shipp, 589 F.3d 1084, 1091 (10th

Cir. 2009) (internal quotation marks omitted) (citing Schriro v.

Summerlin, 542 U.S. 348, 352 (2004)).                      That is exactly the case

with Newbold here.

       For these reasons, Newbold may challenge his sentence on

collateral review.           See Foote, ___ F.3d ___, 2015 WL 1883538, at

*11    (recognizing      a   sentence         issued     in   excess      of     the   maximum

authorized by law as a fundamental defect); Welch, 604 F.3d at

412-13    (permitting        a    § 2255      challenge       to     an   erroneous      armed

career criminal designation on basis that the defendant received

an illegal sentence); Shipp, 589 F.3d at 1086, 1091 (determining

a    defendant’s    due      process      rights      were    violated      where       he    was

erroneously    sentenced           as    an   armed      career      criminal).          Being

                                              12
satisfied that Newbold’s challenge is cognizable under § 2255,

we now move to the merits of the case.



                                        III.

       On   appeal,    Newbold     challenges    only    the   use    of    his     1984

conviction as an ACCA predicate.               We review this legal question

of     statutory      interpretation     de     novo.       United         States    v.

Washington, 629 F.3d 403, 411 (4th Cir. 2011); United States v.

Brandon, 247 F.3d 186, 188 (4th Cir. 2001).                       As we describe

below, an examination of North Carolina’s sentencing regime, as

well as Newbold’s criminal history and the circumstances of his

offense, shows that he should never have been sentenced as an

armed career criminal.

                                         A.

       At the time of Newbold’s 1984 conviction, North Carolina

sentenced criminal defendants pursuant to the Fair Sentencing

Act.     Fair Sentencing grouped felonies into different classes

and    assigned    each    class    a   baseline,       “presumptive”        term    of

imprisonment.      See N.C. Gen. Stat. § 15A-1340.4 (1983) (repealed

effective Oct. 1, 1994).           It also set a maximum, aggravated term

of imprisonment for each offense class.                 See id. § 14-1.1 (1981)

(repealed effective Oct. 1, 1994).              By law, the judge could only

deviate     from   the    presumptive    term     by    finding      and    recording

aggravating or mitigating factors.                Id. § 15A-1340.4(b).               For

                                         13
example,    if    the     judge       found      aggravating        factors        by     a

preponderance     of    the     evidence,       she    could    award     a    sentence

somewhere   in    the   range    between        the   presumptive       term    and     the

maximum aggravated term.             Id.    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. 7   Id.

     In Newbold’s case, his alleged ACCA predicate was one of

eight    different      offenses       consolidated          into   two        different

judgments    pursuant     to    an   April      18,   1984     guilty    plea. 8        One


     7 Under the successor to the Fair Sentencing Act, the
Structured Sentencing Act, the sentencing court imposed a felony
sentence contingent on the offense class and the defendant’s
“prior record level.”    Simmons, 649 F.3d at 240.     The court
would derive a defendant’s minimum and maximum prison term by
matching the two values on a statutory table setting forth a
mitigated, presumptive, and aggravated sentencing range.     Id.
Structured   Sentencing   also   provided   several   procedural
protections not available under Fair Sentencing, including
requirements that: the judge make written findings to permit a
departure from the presumptive range; the government give
thirty-days’ notice of its intent to prove aggravating factors;
and the jury find the existence of those factors beyond a
reasonable doubt. Id.
     8 On brief and at oral argument, the parties represented
that Newbold pleaded guilty to seven different drug offenses.
However, comparing the offenses in the judgment forms to those
in the plea transcript and PSR, there were actually eight
separate offenses.   See J.A. 276, 398-400 (referencing docket
(Continued)
                                           14
consolidated judgment shows he received a seven-year sentence

for three of the offenses, while the second shows a ten-year

sentence for the remaining five.                      While reflecting the larger,

seven- and ten-year sentences, the judgments do not specify how

many years were awarded for each individual offense.                                 They do,

however, list each offense’s statutorily-prescribed, presumptive

and maximum aggravated penalties.                         All told, Newbold pleaded

guilty       to    eight     offenses      in     exchange       for    a   seventeen-year

sentence,         even    though     the   presumptive          terms   for   each     of   the

individual         eight    offenses       added     up   to    nineteen      years. 9      The

alleged federal predicate was a possession with intent to sell

and deliver a controlled substance offense (the “PWID” offense).

This       PWID    offense     was     a   Class      H   felony,       which    carried     a

presumptive         term     of    three    years,        and    a   maximum     aggravated

penalty      of     ten    years. 10        Id.      § 15A-1340.4(f)(6);         id.     § 14-




numbers 83 CRS 75479/80/81/82/83/84/87 and a felony manufacture
of a Schedule II controlled substance offense without any docket
number).   The plea transcript also reflects dismissal of an
additional misdemeanor, no. 83 CRS 71076, not listed in the
judgments. J.A. 276.
       9
       The eight offenses included three Class H and four Class I
felonies, as well as one misdemeanor, for which Fair Sentencing
prescribed   three-,  two-,   and  two-year   presumptive  terms,
respectively.    See J.A. 278-81; N.C. Gen. Stat. § 15A-1340.4
(1983) (repealed effective Oct. 1, 1994).
       10
        Although the PSR cites this particular offense as the
ACCA predicate, there are three such Class H felonies contained
(Continued)
                                                15
1.1(a)(8).          The   judgments     do        not    list     any    aggravating     or

mitigating factors.

                                             B.

      According      to   Newbold,      he    never       could    have    received      the

aggravated    penalty       of    ten   years’          imprisonment      for     his   PWID

offense.      As there are no aggravating factors listed on the

judgment, Newbold maintains he received the presumptive, three-

year term for this Class H offense.                     To nevertheless count it as

an   ACCA   predicate       would   violate        the    rule    of    Simmons,    argues

Newbold, which teaches that “federal courts should not apply

hypothetical        sentencing      enhancements”           thereby        “lumping     all

defendants – and virtually all crimes – into the same category

for the purposes of federal sentencing.”                    649 F.3d at 249-50.

      We    agree    that    Simmons     governs          the    outcome    here.       The

controlling     inquiry,         however,     is    not     what       sentence    Newbold

actually received for the individual PWID offense within the

larger, consolidated judgment.                See United States v. Valdovinos,

760 F.3d 322, 327 (4th Cir. 2014).                      Instead, we must determine

the maximum penalty that Newbold potentially faced given his

particular offense and his particular criminal history.                            Such an

analysis of “the maximum possible sentence that the particular


in the two consolidated judgments, neither of which lists any
aggravating factors.    Our analysis applies equally to all
offenses of this class.


                                             16
defendant         could      have     received”       requires       examination        of     a

defendant’s          “offense       class”     and    “the      applicability      of        the

aggravated sentencing range.” 11                United States v. Kerr, 737 F.3d

33,    37    (4th     Cir.    2013).         This    is    in   contrast    to    our    past

practice under Harp, where we looked to “the maximum aggravated

sentence that could be imposed for th[e] crime upon a defendant

with the worst possible criminal history.”                            406 F.3d at 246.

Ever        since     Simmons       overruled        Harp,      where    there     are        no

aggravating factors, we consider the presumptive term to be the

maximum applicable punishment.                      We have held so even in cases

where       the     defendant       actually    received        a   sentence     below       the

presumptive          term,   either     due    to    the     existence     of    mitigating

factors, Kerr, 737 F.3d at 38-39, or pursuant to a statutorily

binding plea agreement, Valdovinos, 760 F.3d at 327.

       Newbold has conclusively demonstrated that there is nothing

in the record supporting the government’s contention that his

PWID offense was punishable by ten years.                            As discussed, the

alleged federal predicate was a Class H offense.                                 The North

       11Under Structured Sentencing, we also look to the
defendant’s “prior record level,” a value assigned to his
criminal history.   Kerr, 737 F.3d at 37.      The Fair Sentencing
law did not treat a defendant’s criminal history as a “prior
record   level,”  but   instead    considered   recidivism    as   an
aggravating factor.     § 15A-1340.4(a)(1)(o) (including as an
aggravating factor any prior conviction of more than 60 days’
confinement).     Therefore,    in    applying   Simmons   to    Fair
Sentencing, we need only look to the offense class and
applicability of the aggravated sentencing range.


                                               17
Carolina legislature assigned to this felony class a presumptive

term of three years, and a maximum aggravated penalty of ten

years; that is, the law established an aggravated range, above

the presumptive term, of three to ten years.     An examination of

the conviction itself, as Simmons instructs, 649 F.3d at 243,

reveals that the state court judgment contains no aggravating

factors supporting a sentence within the aggravated range.      Nor

does Newbold’s plea transcript reflect his admission of any such

facts.    There is simply nothing to support the idea that Newbold

ever faced more than the presumptive term of three years for the

state court, PWID conviction that the government now seeks to

use as a federal ACCA predicate. 12   See United States v. Lockett,

782 F.3d 349, 352 (7th Cir. 2015) (refusing to permit the use of

prior state court convictions as qualifying ACCA offenses where

“there is no indication in the record . . . [of] ever [being]

exposed to the Illinois recidivist enhancement that would have


     12 We further note that the sentence itself does not even
support the idea that the PWID offense alone was punishable by
ten years.   Cf. Lockett, 782 F.3d at 352 (reasoning that the
alleged federal predicate offense could “only be evaluated in
light of the actual . . . sentence imposed” where the record of
conviction did not contain findings of recidivism enhancements).
To recall, Newbold received ten years on five different charges.
If the Class H, PWID offense had been punishable by ten years,
this would mean Newbold received zero days of imprisonment for
each of the other four offenses.   We find it highly improbable
that this was the sentencing court’s logic, especially since the
consolidated judgment included not one, but two of the same,
Class H offenses.


                                 18
brought [the] maximum [state court conviction penalty] up to the

ACCA-triggering minimum”).

       Despite this lack of support in the record, the government

asserts that we may consider the Class H offense punishable by

ten years.      Tellingly, the government does not actually argue

that there were aggravating circumstances surrounding Newbold’s

PWID offense such that receiving a ten-year term was ever a

possibility.     Instead, because the Fair Sentencing Act did not

require the state court to record aggravating factors in the

case of a plea agreement, see N.C. Gen. Stat. § 15A-1340.4(b),

the government asks us to assume the existence of unrecorded

aggravating    factors.           Engaging          in   this   type   of    speculation,

however, would turn Simmons on its head.                          The absence of any

aggravating factors in the record may have been sufficient to

support Newbold’s sentence under state law, but it cannot change

our inquiry under Simmons for federal sentencing purposes.                                Such

an approach would return us to the inexorable problem of the

hypothetical,       worst-case        defendant.           “Simmons,       and    Carachuri

before it, teach that we may not measure a defendant’s maximum

punishment     based       on    a    hypothetical         charge,     a     hypothetical

criminal     history,       or       other        ‘facts   outside     the       record    of

conviction.’”       Valdovinos, 760 F.3d at 327 (quoting Simmons, 649

F.3d    at    244).         The       government’s          argument        is    therefore

unavailing,    as     it    is    only       by    entertaining      the    existence      of

                                              19
aggravating     factors    “outside    the    record      of   conviction”     that

would allow us to say, hypothetically, that Newbold could have

received ten years for the PWID crime. 13                 Simmons, 649 F.3d at

244; see also Lockett, 782 F.3d at 352.

      Accordingly, when we follow Simmons to consider not the

hypothetical    defendant,      but   the    specific     criminal     history    of

Newbold and the circumstances of his offense, it is clear that

the maximum sentence Newbold faced for the PWID offense was the

presumptive, three-year term, meaning he cannot be considered an

armed career criminal.         It is of no moment that Simmons involved

a   different   federal     statute.        See   Kerr,    737   F.3d   at   34-35

(applying     Simmons     to   the    ACCA    and    finding     the    defendant

possessed the requisite violent felonies making him an armed

career criminal);         United States v. Norman, 462 F. App’x 307,

310 (4th Cir. 2012) (unpublished) (applying Simmons to the ACCA

and   finding   the     defendant’s    prior      state    conviction    did     not

qualify as a serious drug offense).               Indeed, there is no reason

why Simmons should not apply to the ACCA when we had previously



      13If we were to entertain hypotheticals, the fact that
Newbold received a seventeen-year sentence for eight offenses
between the two consolidated judgments, even though the
presumptive terms of each offense added up to nineteen years,
suggests that there were unrecorded mitigating, not aggravating,
factors at play.     The lack of any recorded factors in the
record, however, should neither advantage nor disadvantage
Newbold.


                                       20
adjudicated ACCA predicates under the rule of Harp.                                     See United

States v. Williams, 508 F.3d 724, 729 (4th Cir. 2007).

       We must also reject the government’s argument that McNeill

v. United States, 131 S. Ct. 2218 (2011), obligates a contrary

result.      As we have previously explained, nothing in McNeill

undermines our Simmons holding.                       Simmons, 649 F.3d at 245 n.6.

The government also overlooks the fact that the defendant in

that case never raised the argument asserted here by Newbold.

McNeill principally involved whether a federal sentencing court

should     consult        the    state      law       at    the        time    of       the    state

conviction,     or    that        in      place       at   the    time        of    the       federal

prosecution, when deciding if the prior offense was punishable

by ten years.        131 S. Ct. at 2220.                    A unanimous Supreme Court

instructed     us    to    look      to    the    law      at    the    time       of   the     state

conviction.     Id.        Of course, the Supreme Court also found that

the defendant’s drug offense, for which he served ten years, was

properly     considered         an   ACCA    predicate.            As     we       determined      in

Simmons, “crucial to the McNeill holding was the fact that North

Carolina courts actually sentenced [McNeill] to ten years in

prison.”     649 F.3d at 245 n.6 (internal quotation marks omitted,

alteration in original).               This outcome is in no way inconsistent

with   our   holding       today.          Simmons,        as    well     as       common      sense,

dictates that where a defendant actually receives a ten-year



                                                 21
sentence, clearly that offense is punishable by ten years for

the purposes of the ACCA.



                               IV.

     We remain ever-mindful that “[j]ustice consists not only of

convicting the guilty, but also of assigning them a lawful and

just punishment.”   Mikalajunas, 186 F.3d at 502 (Murnaghan, J.,

dissenting).   Newbold does not possess the requisite, predicate

“serious drug offenses” making him an armed career criminal.

His sentence is

                                           VACATED AND REMANDED.




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