Georgia Arson, South Carolina Drug Convictions Serve as ACCA and Career Offender Predicates

US v. Furlow: Furlow pleaded guilty to both a drug charge and being a felon in possession of a firearm. In the PSR he was designated both as a career offender and ACCA-eligible, due partly to prior convictions in Georgia for arson and South Carolina for distribution of crack. As to the arson, Furlow argued that the term arson as used in the ACCA and the Guidelines was unconstitutionally vague, but didn’t argue anything about the definition of generic arson. As to the drug charge, he argued that the South Carolina statute included merely purchasing (rather than selling) a controlled substance and was broader than the definitions for “serious drug offense” and “controlled substance offense.” The district court disagreed and eventually imposed concurrent sentences of 180 months in prison.

On appeal the Fourth Circuit affirmed the sentence. On the arson, Furlow changed his strategy on appeal, ditching the vagueness argument and instead arguing that the Georgia offense was broader than the generic definition of arson, particularly because it did not require a mens rea of maliciousness. This left Furlow facing plain error review and the court concluded that any error was not plain, rejecting Furlow’s contention that an earlier Fourth Circuit case had required maliciousness as the mens rea element for generic arson. As to the South Carolina drug conviction, the court concluded that the modified categorical approach was appropriate and that when the proper documents were consulted it was clear that Furlow had been convicted of distribution of drugs.