Beruflich Dokumente
Kultur Dokumente
No. 15-4114
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge. (1:14-cr-00182-NCT-1)
Argued:
Decided:
previously
committed
sentence
as
an
stand.
Second,
armed
he
three
career
contends
He
violent
criminal
that
felonies
under
none
of
and
so
924(e)
his
his
cannot
prior
state
For
I.
On
May
27,
2014,
grand
jury
indicted
Barlow
for
In July
found
mitigating
facts
and
sentenced
Barlow
to
two
Under North
career
(ACCA).
criminal
under
the
Armed
Career
Criminal
Act
constituted felonies.
the
grounds
court
to
accepted
withdraw
the
the
argument,
plea
and
it
would
obtain
provide
dismissal
Barlow
of
the
indictment. 1
that
his
prior
state
convictions
were
not
felonies
for
out
indicated
of
the
that
discharging
same
criminal
juvenile
weapon
into
episode.
adjudication
occupied
of
property
The
court
also
delinquency
under
N.C.
for
Gen.
II.
The less complex of Barlows appellate arguments involves
his
two
North
convictions.
Carolina
felony
speeding
to
elude
arrest
involving
the
924(e)(2)(B)(ii).
use
of
explosives.
Therefore,
to
See
constitute
18
a
U.S.C.
crime
of
violence for purposes of the ACCA, the district court must have
found that this offense qualified under the residual otherwise
clause,
which
defines
violent
felony
as
any
crime
that
Barlows
sentencing,
the
Id.
Supreme
Court
issued
its
The
Appellees
convictions,
his
fifteen-year
5
sentence
imposed
pursuant
to
omitted). 2
the
ACCA
We agree.
is
no
longer
valid.
Id.
(footnote
resentencing.
III.
Barlows remaining argument poses a more complicated and
more comprehensive
challenge.
He
contends
that
none
of
his
not
be
922(g)(1).
requires
felon
This
his
is
release
on
in
so,
possession
he
of
maintains,
post-release
firearm
because
supervision
under
state
nine
law
months
In United
States v. Simmons, 649 F.3d 237, 240, 249-50 (4th Cir. 2011) (en
banc), we held that the Structured Sentencing Act establishes a
carefully
crafted
sentencing
scheme
in
which
two
factors
offense
and
the
offenders
own
criminal
record.
After
That
sentencing
sentencing
for
confinement
for
Reinvestment
Act
regime,
habitual
including
felons,
and
misdemeanants.
of
2011,
2011
reforms
the
See
N.C.
to
probation,
proper
place
generally
Sess.
Laws
of
Justice
192;
Jamie
(June
30,
2011),
http://nccriminallaw.sog.unc.edu/the-
justice-reinvestment-act-an-overview/.
Most relevant here, the Justice Reinvestment Act mandates
terms
of
post-release
supervision
for
all
convicted
felons
See 2011
Justice
Reinvestment
Act,
serious
Class
B1
through
felons
supervision
beginning
nine
months
See id.
prior
to
the
See id.
See id.
possible
maximum
term
of
imprisonment
for
felony
months
and
rendered
an
offense
that
would
not
have
He insists
of
not
more
than
ten
months,
followed
by
nine
North
Carolina
legislature,
however,
has
expressly
imposed
do
not
terminate
until
The sentence or
a
N.C.
supervisee
Id. 15A-
Of
course,
the
North
Carolina
legislature
could
have
imprisonment
and
requiring
nine-month
period
of
postBut it
18 U.S.C. 3583(a)
See id. 4
to
probation,
incarceration.).
is
not
punishment
in
lieu
of
important
supervision
federal
in
and
distinction.
way:
the
North
only
term
of
Carolina
North
Carolina
imprisonment.
criminal
law
includes
comparison
judgments
reflects
the
of
this
In contrast, a
North Carolina judgment for even the least serious felony, like
breaking and entering, orders the felon imprisoned for a maximum
term of months, with no mention of post-release supervision.
To
be
sure,
persons
serving
felony
sentences
in
North
Carolina typically do not spend the last nine months (or twelve
months for Class B1 through E felonies) of their sentences in
prison.
But
some
will,
and
the
fact
that
post-release
imposed
terms.
(emphasis added).
N.C.
Gen.
Stat.
15A-1368.3(c)(1)
provision
makes
clear
that
those
on
post-release
And
this,
Barlow
argues
that
this
period
of
some
second,
post-offense
provisions
and
post-imprisonment
act.
also
the
fact
that
North
Carolina
of
post-release
supervision
and
returns
to
prison,
657
S.E.2d
655,
661
(N.C.
2008)
See State v.
([R]evocation
of
felony
triggered
the
convictions
revocation,
and
not
absconding
12
from
from
his
his
conduct
which
post-release
officer.); State v. Corkum, 735 S.E.2d 420, 423 (N.C. Ct. App.
2012)
(There
revocation
is
of
no
new
sentence
post-release
imposed
supervision;
as
only
result
the
of
remaining
purely
administrative
supervision
in
nature
North
of
Carolina
revocation
echoes
the
of
post-
states
The
(the
under
the
infraction.
Post-Release
Commission),
the
states
revocation
of
Supervision
an
Division
post-release
and
Parole
administrative
entity
of
Adult
Correction,
supervision
after
an
Id. 15A-1368.6(d).
If
hearing
officer
finds
probable
cause
to
believe
order
the
imprisonment,
supervisee
subject
to
to
serve
final
the
appropriate
revocation
term
hearing
to
of
be
makes
occurred.
final
determination
of
whether
violation
and
resentences
defendants
to
terms
of
And
under
Simmons
we
ask
only
what
term
of
v.
Kerr,
737
F.3d
33,
38
(4th
Cir.
See United
2013);
see
also
course,
those
felony
sentences
14
include
period
of
post-
release
supervision.
But
state
law
renders
post-release
Therefore, each
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED FOR RESENTENCING.
15