Concurrent Sentence Doctrine Allows Bypass of ACCA Johnson Issue

 US v. Charles: In 2005 Charles was convicted of a crack charge and being felon in possession of a firearm. He was determined both to be a career offender and qualify for sentencing under the Armed Career Criminal Act and wound up getting sentenced to 360 months on each count, to run concurrently. After Johnson Charles filed a 2255 motion challenging both his career offender and ACCA designations. The district court concluded that the career offender classification was correct, then decided not to review the ACCA issue, applying the “concurrent sentence doctrine” and concluding that because Charles was still subject to the 360-month drug charge sentence there was no “realistic potential [of] adverse collateral consequence” to Charles in letting the ACCA sentence stand.

The Fourth Circuit affirmed the denial of Charles’s 2255 motion. The concurrent sentence doctrine, it explained, “rests on the same rationale underlying harmless-error review” and allows courts to “leave unreviewed” issues related to a particular sentence where there are multiple concurrent sentences imposed (note that it does not apply to convictions). In particular, the issue was whether Charles could show, with some certainty, that there would be collateral consequences in the future because the district court failed to review the ACCA sentence. The court concluded that there were not. Specifically, Charles posited a scenario in which his terms of supervised release were revoked and he was sentenced to a term greater than the statutory maximum if his firearm sentence had not been imposed under ACCA. The court called that “hypothetical scenario . . . highly speculative and unrealistic,” particularly because it “could only arise if he were to choose to violate the terms of his supervised release. Thus, his posited adverse effect would be entirely within his ability to avoid.” Thus, there was no error in the district court’s decision not to review the ACCA claim – except that, during the pendency of the appeal, the First Step Act’s retroactive application of the Fair Sentencing Act might result in a reduction in Charles’s drug sentence, so the court remanded for consideration of that issue and, ultimately, whether the ACCA claim needed to be reviewed anyway.