NC Mitigated Range Sentence Doesn't Avoid ACCA

US v. Kerr: This is yet another case dealing with the meaning of prior North Carolina convictions in federal court.  Kerr was convicted of being a felon in possession of a firearm and sentenced as an armed career criminal based on three 2008 NC convictions for breaking and entering.  For those convictions (apparently all sentenced at the same time) under NC's Byzantine sentencing scheme, Kerr faced a "presumptive minimum term" of 9-11 months and a "presumptive maximum sentence" of 14 months.  However, the sentencing judge found that the mitigating factors outweigh the aggravating ones and departed to the "mitigated range" of 8-10 months, with a possible maximum of 11 months.

Kerr objected to the ACCA designation at his original sentencing, arguing that he did not face more than a year for any of those convictions and thus they were not qualifying "violent felonies."  The district court disagreed.  The Fourth Circuit held his appeal in abeyance while it worked out the Simmons situation, after which it remanded for resentencing.  On remand Kerr added an argument that none of those priors were qualifying felonies for the possession statute in the first place.  The district court disagreed and reimposed the ACCA sentence.

On his second appeal, the Fourth Circuit affirmed Kerr's conviction and sentence, 2-1.  Applying Simmons and its progeny, the court concluded that Kerr's prior convictions carried a potential maximum term of 14 months, and thus were felonies.  The sentencing court's mitigation finding did not require it to impose a sentence in the mitigated range and, even if it did, that didn't change the maximum he faced upon conviction.  Because the maximum Kerr faced was over 12 months, the convictions were felonies for purposes of both his conviction and ACCA sentence.

Judge David dissented, arguing that the majority was returning to the days of "hypothetical" sentences that has been rejected by Simmons and the Supreme Court precedent on which it relied.  He argues that the hypothetical use of prosecutorial discretion to enhance a sentence (rejected by SCOTUS) is no different than the hypothetical possibility that the judge could have imposed a higher sentence in these cases.