                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-4568


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

JAMES MORRIS SELLERS,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:13-cr-00783-RBH-1)


Argued:   September 17, 2015            Decided:   November 18, 2015


Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.


Affirmed by published opinion.    Judge Shedd wrote the opinion,
in which Judge Niemeyer and Judge Keenan joined.


ARGUED: William Fletcher Nettles, IV, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Florence, South Carolina, for Appellant.
Jimmie Ewing, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.     ON BRIEF: Kimberly H. Albo,
Research and Writing Specialist, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant.   William N.
Nettles, United States Attorney, Columbia, South Carolina,
Alfred W. Bethea, Jr., Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for
Appellee.
SHEDD, Circuit Judge:

     A federal jury convicted James Morris Sellers of unlawfully

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

sentencing, the district court determined that Sellers qualified

as an armed career criminal under the Armed Career Criminal Act

(“ACCA”),      18   U.S.C.    § 924(e),       because   his       three    prior   South

Carolina drug convictions were offenses “for which a maximum

term of imprisonment of ten years or more is prescribed by law.”

     On appeal, Sellers contends that his prior drug convictions

do not qualify him as an armed career criminal because the state

court     sentenced     him    pursuant       to   South      Carolina’s      Youthful

Offender Act (“YOA”), S.C. Code Ann. § 24-19-50, which permits

courts to cap the maximum penalty for certain offenders at six

years in custody. Sellers acknowledges that we rejected this

argument in United States v. Williams, 508 F.3d 724 (4th Cir.

2007), but he contends that Williams is no longer good law in

light of our decision in United States v. Simmons, 649 F.3d 237

(4th Cir. 2011) (en banc).

     We    reaffirm     our    holding    in       Williams.       Simmons    and    its

progeny    reinforce     Williams’    directive         that      courts    evaluating

whether    a    prior   conviction    qualifies         as    a    predicate       for   a

federal sentence enhancement look to the statutory penalty for

the prior conviction, not the sentence the defendant received.

As we explained in Williams, YOA offenses can qualify as ACCA

                                          2
predicates because the maximum statutory penalty for the prior

conviction is unaffected by the state court’s exercise of its

discretion to impose a sentence of six years or less in custody.

We therefore affirm the district court’s judgment.

                                        I.

    In February 1999, Sellers pled guilty in state court to

three indictments charging him with possession with intent to

distribute crack cocaine, in violation of S.C. Code Ann. § 44-

53-375(B). The court sentenced him to an indeterminate period of

custody not to exceed six years pursuant to the YOA, 1 which

provides that “[i]n the event of a conviction of a youthful

offender the court may:” (1) suspend the sentence and place the

youthful    offender    on   probation;        (2)   release    the   youthful

offender to the custody of the Youthful Offender Division before

sentencing for an observation and evaluation period of up to 60

days; (3) sentence the youthful offender indefinitely to the

custody    of   the   Department   of       Corrections   for   treatment   and

supervision until discharged by the Youth Offender Division, the

period of custody not to exceed six years; or (4) sentence the



     1 Sellers and the Government both state in their briefs that
Sellers was sentenced to an indeterminate period of detention
not to exceed six years, but Sellers’ presentence report states
that the sentence was not to exceed five years. J.A. at 44 ¶ 21.
Whether Sellers was sentenced to five or six years has no impact
on our analysis.



                                        3
youthful offender under any other applicable penalty provision,

if it finds that he will not derive benefit from treatment. S.C.

Code Ann. § 24-19-50(1)-(4) (emphasis added).

       In   March    2014,       a       federal     jury    found         Sellers      guilty      of

unlawfully      possessing           a    firearm,      in    violation           of    18    U.S.C.

§ 922(g)(1). The presentence report (“PSR”) recommended that the

district    court     sentence            Sellers      as    an    armed        career      criminal

pursuant to the ACCA. In relevant part, the ACCA imposes an

enhanced sentence on a defendant convicted of being a felon in

possession      of    a       firearm      if    the    defendant           has      three      prior

convictions     for       a    “serious         drug    offense,”          i.e.,       an    offense

carrying a maximum term of imprisonment of ten years or more. 18

U.S.C. § 924(e)(2)(A). The PSR identified Sellers’ three South

Carolina      drug        convictions            as      qualifying             “serious         drug

offense[s]” because the statute of conviction, S.C. Code Ann.

§ 44-53-375(B),           provided         a    maximum       term         of     15     years      of

imprisonment for a first offense and enhanced maximum sentences

for subsequent offenses.

       Sellers objected to the PSR, asserting that the three prior

drug   convictions            were   not       punishable         by   a     maximum         term   of

imprisonment of ten years or more because the YOA imposed a

maximum penalty of six years in custody. Sellers recognized that

we   rejected    this         contention        in    Williams,        but      he     argued    that

Williams was abrogated by our decision in Simmons. The district

                                                 4
court overruled Sellers’ objection and sentenced him as an armed

career criminal to a term of 210 months of imprisonment and five

years of supervised release.

                                           II.

       Sellers reiterates his objection on appeal, arguing, as he

did below, that his three prior drug convictions do not trigger

the ACCA’s sentence enhancement. In Sellers’ view, because the

sentencing judge failed to find that he would not derive benefit

from treatment, the YOA capped his sentence at six years.

       In   considering      a    district       court’s    determination           that   a

defendant qualifies for an enhanced sentence under the ACCA, we

review      its   factual    findings      for     clear    error    and      its    legal

conclusions de novo. United States v. Wardrick, 350 F.3d 446,

451 (4th Cir. 2003).

                                           A.

       In   state   court,       Sellers   had    been     charged     with    and    pled

guilty to three counts of possession with intent to distribute

crack cocaine, in violation of S.C. Code Ann. § 44-53-375(B).

Because he was 20 years old at the time of his conviction, the

state court was permitted to sentence him under the YOA. See

S.C.     Code     Ann.      § 24-19-10(d).         The      YOA     “sets      forth        a

discretionary       sentencing      alternative,”          Williams,    508     F.3d       at

727, that in pertinent part allows a sentencing judge to either

commit a youthful offender to an indefinite period of custody

                                            5
not to exceed six years or, if he “finds that the youthful

offender will not derive benefit from treatment,” to sentence

him “under any other applicable statutory provision,” S.C. Code

Ann. § 24-19-50(3)-(4).

       In   Williams,   the    defendant      argued    that       his   prior      South

Carolina    conviction       for   possession    with       intent    to      distribute

crack cocaine did not qualify as an ACCA predicate despite the

statutory maximum penalty of 15 years in prison because he was

sentenced     to   an   indeterminate        period    of    confinement         not   to

exceed six years pursuant to the YOA. He asserted that once a

state court “uses the YOA to designate an offender as one who

cannot receive a sentence in excess of six years, the offense of

conviction no longer carries a possible term of imprisonment of

ten years or more and therefore does not qualify as a ‘serious

drug offense.’” Williams, 508 F.3d at 727. We squarely rejected

this   characterization       of    sentencing    under      the     YOA,     reasoning

that “the language of the YOA is permissive, not mandatory.” Id.

(emphasis added).

       We further rejected the contention that we “should look to

the    sentence    actually        imposed,    rather       than     the      range    of

penalties to which [the defendant] was potentially subject,” to

determine     whether    a    prior    conviction       qualifies        as    an     ACCA

predicate. Id. at 728. Because the plain language of the ACCA

“directs courts to consider the statutory penalty for the prior

                                         6
conviction, not the sentence the defendant in fact received,” we

held       that   a      prior    conviction    “qualifies      as   a     ‘serious     drug

offense’ if the statute of conviction permits the imposition of

a sentence of ten years or more.” Id. (emphasis in original). We

concluded that Williams’ prior drug conviction was one for which

a   maximum         term    of    imprisonment      of   ten    years      or    more    was

prescribed          by     law,   despite     the   fact   that      the    state       court

exercised its discretion to sentence him to a lesser term. Id.

at 730. Sellers now asserts that this holding has been abrogated

by our decision in Simmons.

                                               B.

       In Simmons, we considered whether a prior North Carolina

conviction was punishable by more than one year in prison under

“the       unique     statutory      regime    mandated    by   the      North    Carolina

Structured Sentencing Act.” 2 649 F.3d at 239-40 (emphasis added).


       2
       In Simmons, we were tasked with determining whether a
prior conviction qualified as a predicate for a federal sentence
enhancement under the Controlled Substances Act (“CSA”), which
imposes a mandatory minimum of ten years in prison if the
offense conduct occurred “after a prior conviction for a felony
drug offense has become final.” 21 U.S.C. § 841(b)(1)(B). The
CSA defines “felony drug offense” as a drug-related offense
“that is punishable by imprisonment for more than one year.” 21
U.S.C. § 802(44). The critical question was therefore whether
Simmons’ prior conviction was punishable by a prison term
exceeding one year.
     The issue currently before us is whether Sellers’ prior
convictions qualify as predicates under a portion of the ACCA
that imposes an enhanced sentence on offenders who have three
prior drug-related convictions punishable by ten years of
(Continued)
                                               7
Under the Structured Sentencing Act, sentences are contingent on

two factors established by statute: the class of offense and the

offender’s prior record level. N.C. Gen. Stat. § 15A-1340.13(b).

The sentencing judge must match the class of offense and prior

record level to a statutory table, which provides three possible

sentencing ranges: a mitigated range, a presumptive range, and

an aggravated range. Id. § 15A-1340.17(c).

     As we explained, “[t]he presumptive range governs unless

the judge makes written findings that identify specific factors,

separately designated by the [Structured Sentencing] Act, that

permit   a    departure      to     the       aggravated      or    mitigated     range.”

Simmons,     649     F.3d   at    240.       “[A]    judge    may    select      from   the

aggravated     range    only      if    the    State    has   provided      a    defendant

thirty-days’       notice    of        its    intent     to   prove     the     necessary

aggravating factors and a jury has found beyond a reasonable

doubt (or the defendant has pled to) the existence of those

factors.” Id. (internal citations omitted). The sentencing judge

has no control over whether these conditions are fulfilled and

has no discretion to impose a sentence in the aggravated range

absent       their     satisfaction.               Importantly,       the       Structured




imprisonment or more. See 18 U.S.C. § 924(e). Although the CSA
requires a one-year term of imprisonment while the provision of
the ACCA at issue here requires a ten-year term, we conclude
that the analysis is the same.


                                               8
Sentencing        Act     does     not     create       a    discretionary,      guidelines

system;         rather,      “it       mandates        specific       sentences,      so      no

circumstances exist under the Structured Sentencing Act in which

a North Carolina judge may impose a sentence that exceeds the

top    of   the     range     set      forth     in    the    Act.”     United   States       v.

Valdovinos,        760    F.3d      322,    326       (4th   Cir.     2014)   (emphasis       in

original) (internal quotation marks omitted). To be clear, under

the Structured Sentencing Act, the judge has “no discretion to

impose      a    more    severe     sentence         even    in   extraordinary       cases.”

Simmons, 649 F.3d at 240 n.2 (emphasis added).

       Before       Simmons,        we     determined         whether     a   prior        North

Carolina conviction was punishable by a prison term exceeding

one year by looking to “the maximum aggravated sentence that

could be imposed for that crime upon a defendant with the worst

possible criminal history.” United States v. Harp, 406 F.3d 242,

246    (4th      Cir.     2005)     (second       emphasis        added),     overruled       by

Simmons, 649 F.3d 237. However, the Supreme Court’s decision in

Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), caused us to

reconsider this use of a hypothetical worst-case offender.

       In       Carachuri,       the     Court       examined     a    provision      of    the

Immigration and Nationality Act (“INA”) that allows an alien who

“has    not      been     convicted        of    any    aggravated      felony”    to       seek

cancellation of removal. Id. at 566-67; 8 U.S.C. § 1229b(a)(3).

The INA limits “aggravated felon[ies]” in part to certain drug-

                                                 9
related offenses for which the “maximum term of imprisonment

authorized” is “more than one year.” Carachuri, 560 U.S. at 567

(quoting 18 U.S.C. § 3559(a)). The government argued that the

second     of   Carachuri’s        two     prior       Texas   misdemeanor        drug

possession convictions qualified as an aggravated felony because

Carachuri could have received a two-year prison sentence had he

been prosecuted in federal court instead of state court. The

Supreme Court rejected this approach, explaining that it was

irrelevant whether the conduct underlying the defendant’s prior

conviction hypothetically could have received felony treatment.

The    Court    held    instead    that        the    dispositive    question     for

determining     whether    a    defendant       had    committed    an    aggravated

felony    was   whether    he   was      actually     convicted     of   an    offense

punishable by more than one year in prison. Id. at 581-82.

       Applying this rationale in Simmons, we abandoned our use of

a     hypothetical     defendant      with     the    worst    possible       criminal

history and held instead that a prior North Carolina conviction

is punishable by a prison term exceeding one year only if the

particular defendant’s offense of conviction was punishable by a

prison term exceeding one year.

                                          C.

       Here, Sellers contends that in the wake of Simmons, our

analysis of whether his prior drug convictions qualify as ACCA

predicates is governed by the maximum possible sentence that he

                                          10
could    have    received     once     the   state       court         decided     he   would

benefit from treatment under the YOA. Sellers equates the YOA

with    the     Structured        Sentencing       Act      at       issue   in     Simmons,

asserting that just as the Structured Sentencing Act forbids

North Carolina judges from imposing a sentence in the aggravated

range absent a finding of aggravating factors, the YOA prohibits

South Carolina judges from imposing a sentence greater than six

years in custody absent a finding that the youthful offender

would    not    benefit     from    treatment.         He    argues       that,     like     in

Simmons, the sentencing judge in his case failed to make the

factual       finding      necessary    to       warrant         a     higher      sentence.

Accordingly, he asserts, the YOA imposed a maximum sentence of

six years in custody, and his prior convictions do not qualify

as ACCA predicates.

       Sellers’ argument is incorrect for two important reasons.

First, Sellers fails to appreciate the key distinction between

the    Structured       Sentencing     Act       and   the       YOA:    the      Structured

Sentencing Act is a legislative mandate that strictly prohibits

the sentencing judge from imposing a sentence that exceeds the

maximum       fixed   by   the    statutory       chart,         while    the     YOA   is   a

discretionary         alternative    that     provides           the    sentencing      judge

with    the    authority     to    impose    an    increased           sentence.     Second,

Sellers looks to the sentence that was actually imposed, rather

than the sentence he faced; we have repeatedly rejected this

                                            11
approach, even after Simmons. See, e.g., United States v. Kerr,

737 F.3d 33, 38 (4th Cir. 2013), cert. denied, 134 S. Ct. 1773

(2014). Simmons and its progeny foreclose Sellers’ contention

that   his   sentences     under      the    YOA       do    not     qualify      as     ACCA

predicates.

                                        1.

       In Kerr, for example, the defendant argued that his prior

North Carolina convictions did not qualify as predicate felonies

for a federal sentence enhancement because the sentencing judge

exercised her discretion to impose a sentence in the Structured

Sentencing    Act’s     mitigated      range,      which       provided       a    maximum

possible sentence of 11 months in prison, as opposed to the

presumptive    range,     which    provided        a   term     of    9-14     months      in

prison. Id. at 36. We rejected the argument that the mitigated

range’s 11-month cap meant that Kerr’s prior conviction was not

punishable by more than one year in prison and held instead that

the    presumptive      range      determined           his        maximum        term     of

imprisonment.    Although       the    sentencing           judge    determined          that

mitigating    factors     warranted     a    sentence         within    the       mitigated

range, “the     maximum    possible     prison         that    Kerr    faced       for    his

prior state convictions” was determinative because “the judge

remained free at all times to sentence Kerr to a presumptive

prison term of up to 14 months.” Id. at 38-39 (second emphasis

added).

                                        12
         Similarly, in Valdovinos, the defendant asserted that his

prior North Carolina conviction did not qualify as a predicate

felony because he was sentenced pursuant to a plea agreement

that      provided    for       a    maximum      sentence   of    12     months     of

imprisonment. 760 F.3d at 324-25. Despite the language of the

plea agreement, we held that the prior conviction was punishable

by   a    prison   term     exceeding      one    year   because   the    Structured

Sentencing Act authorized a maximum sentence of 16 months of

imprisonment       for    the       conviction.    We    emphasized     “[t]hat     the

sentence ultimately imposed pursuant to [Valdovinos’] plea deal

was 10 to 12 months’ imprisonment [was] irrelevant,” because

whether a prior conviction qualifies as a sentencing predicate

depends on the maximum sentence permitted, not the sentence a

defendant actually received. Id. at 327 (citing United States v.

Edmonds, 679 F.3d 169, 176 (4th Cir. 2012), vacated on other

grounds, 133 S. Ct. 376, aff’d on remand, 700 F.3d 146 (4th Cir.

2012)).      We    rejected         Valdovinos’    contention      that    the     plea

agreement established his maximum potential punishment because,

unlike the Structured Sentencing Act, “under which a judge may

never impose a sentence that exceeds the top of the range set

forth in the Act, . . . the sentencing judge remains free to

reject the [plea] agreement.” Id. at 328 (second emphasis added)

(internal citation and quotation marks omitted).



                                           13
     Finally, in United States v. Bercian-Flores, the defendant

argued that a prior federal conviction with a statutory maximum

sentence of five years in prison did not qualify as a predicate

felony    because      the       mandatory        Sentencing          Guidelines          range      in

effect at the time of his sentencing was zero to six months of

imprisonment.     786    F.3d          309,   310       (4th        Cir.    2015).       Much    like

Sellers,     Bercian-Flores             analogized             to     the        North     Carolina

Structured Sentencing Act, asserting that just as the sentencing

judge in Simmons failed to find the existence of aggravating

factors and thus could not impose a sentence in the aggravated

range, his sentencing judge failed to find facts that warranted

an upward departure and therefore could not impose a sentence

outside    of   the    Guidelines         range.        We     rejected          Bercian-Flores’

argument and held that the statutory maximum sentence set by the

applicable      legislative            body   –      not       the     top       sentence       in    a

guidelines      range        –    is     determinative               of     whether       a     prior

conviction      constitutes         a    predicate         felony.          As    we     explained,

“Simmons did not change the fact that the cornerstone of our

predicate-felony        analysis         must      be   the         defendant’s        offense       of

conviction.      The    qualification              of      a    prior        conviction         as    a

sentencing predicate does not depend on the sentence a defendant

actually received but on the maximum sentence permitted for his

offense    of   conviction.”            Id.   at     315-16         (internal       alterations,

citations, and quotation marks omitted). Our conclusion hinged

                                                14
on the fact that even under the mandatory Sentencing Guidelines

in effect at the time Bercian-Flores was sentenced for his prior

conviction,       “the    district         court    had   discretion           to   sentence

Bercian-Flores up to the statutory maximum of five years” in

prison. Id. at 315 (emphasis added).

                                             2.

     These       cases    set    forth       two    important            and   interrelated

principles       that     govern      our     analysis         of       whether     a    prior

conviction       qualifies      as    a    predicate      for       a    federal    sentence

enhancement after Simmons. The first is that “the cornerstone of

our predicate-felony analysis” is the maximum sentence permitted

by the defendant’s offense of conviction, not the sentence the

defendant actually received. Id. at 315-16 (citing Valdovinos,

760 F.3d at 327). The second is that “the salient question to be

asked after       Simmons is         whether       the    sentencing           judge     could

sentence     a    particular         defendant”      to    a    qualifying          term    of

imprisonment.       Id.     at       315    (emphasis      in           original)       (citing

Valdovinos, 760 F.3d 322; Kerr, 737 F.3d 33).

     The application of these principles requires us to reject

Sellers’ argument and reaffirm our holding in Williams. First,

Simmons and its progeny reinforce, rather than reject, Williams’

directive that we “consider the statutory penalty for the prior

conviction, not the sentence the defendant in fact received.”

Williams, 508 F.3d at 728 (emphasis in original). In addition,

                                             15
we    conclude    that        the      sentencing            judge      could        have     sentenced

Sellers    to     more       than        ten         years      in    prison         for    his    three

violations       of     S.C.      Code          Ann.       § 44-53-375(B).             When       Sellers

appeared before the state court to receive his sentence, the YOA

provided the sentencing judge with complete discretion to find

that    Sellers       would      not     derive        benefit        from       treatment        and    to

sentence him to a term of imprisonment that exceeded ten years.

See Williams, 508 F.3d at 727; Ballard v. State, 187 S.E.2d 224,

226 (S.C. 1972) (holding that the YOA gives the trial judge “the

right, in his discretion, to impose a sentence under [any of

the] subsections” in the Act without requiring that “specific

factual findings be made a part of the record”); S.C. Code Ann.

§     44-53-375(B)          (providing               maximum         term       of    15     years       of

imprisonment          for     first         offense          and      enhanced        maximums          for

subsequent       offenses).            As       in    Kerr,      Valdovinos,           and    Bercian-

Flores,    the        fact       that       the       sentencing            judge     retained          the

discretion at all times to sentence Sellers to the statutory

maximum penalty controls the outcome of this case.

       Consistent with Williams, we therefore hold that a prior

South Carolina conviction for which a defendant received a YOA

sentence of an indefinite period of confinement not to exceed

six    years    qualifies           as      a    predicate           for    a    federal      sentence

enhancement       where          the     statute           of      conviction         prescribes         a

qualifying      term        of   imprisonment.               Accordingly,            Sellers’      three

                                                      16
South    Carolina       convictions    for    violations         of    S.C.    Code    Ann.

§ 44-53-375(B)      are     offenses     “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),          triggering          the       ACCA’s    sentence

enhancement.

                                        III.

     For    the    foregoing    reasons,       we    hold    that       Sellers’      three

prior    South      Carolina     drug        convictions          qualify       as     ACCA

predicates.       The     district    court     therefore         did     not    err    in

sentencing Sellers as an armed career criminal, and the judgment

of the district court is affirmed.

                                                                                AFFIRMED




                                         17
