Judge Davis Passionately Dissents From ACCA Sentence Confusion
"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."
Judge Andre Davis is obviously mad, but why? Blame the hard-to-apply Armed Career Criminal Act (ACCA), which mandates stiff sentences for those who have previously been convicted of a "violent felony or a serious drug offense." It relies on a vague definition for "violent felony" as "any crime punishable by imprisonment for a term exceeding one year," a definition that makes application to North Carolina borderline-felony offenses exceedingly difficult, as we've seen before, and will see again.
Majority: ACCA Applies -- He Could've Received Longer Sentence
North Carolina's Unique Sentencing Scheme
Norman Kerr has three 2008 state court priors for breaking and entering, each of which was punishable by a presumptive maximum sentence of 14 months' imprisonment.
Presumptive? That brings us to North Carolina's heavily-discretionary scheme. The judge hears mitigating and aggravating factors, proven by a preponderance of the evidence. If she feels that either set of factors demands it, she can sentence the defendant to an adjusted sentencing range, with a written explanation for the departure from the presumptive range.
This sets up a three-range system: the mitigated range, presumptive range, and aggravated range.
His Presumptive Maximum Sentence Was 14 Months
For Kerr, the judge felt that the mitigated range was appropriate, giving him a maximum of 11 months in prison. But the majority points out that the presumptive, non-mitigated range was up to 14 months.
Which controls for ACCA purposes -- the maximum mitigated sentence, or the maximum presumptive sentence (and while we're at it, how about that maximum aggravated sentence)?
The majority sticks to the presumptive range.
Dissent: Mitigated Range Was the Actual Maximum
In an incredibly well-written and persuasive dissent, Judge Andre Davis tears into what he calls an "Alice-in-Wonderland analysis," and under his interpretation of Simmons, once the mitigating factors were proven and accepted by the trial judge, the maximum mitigated sentence would control for ACCA purposes.
"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," he wrote.
Judge Davis also notes that in Simmons, the en banc court noted that while the presumptive range is always available to a judge, even when aggravated factors are proven, special attention to be paid to the actual proof and presence of aggravating factors to determine whether the aggravated range should matter for ACCA purposes.
In other words, the precedent now commands respect for aggravated findings, but not for mitigating findings, an "unwarranted asymmetry into [the courts'] treatment of North Carolina convictions."
- United States v. Norman Kerr (Fourth Circuit Court of Appeals)
- 4th Circuit Overturns Armed Career Criminal Sentence Enhancement (FindLaw's U.S. Fourth Circuit Blog)
- Telephone Game: Multiple Hearsay Is Good Enough for Sentencing (FindLaw's U.S. Fourth Circuit Blog)
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