Argued: May 17, 2013.
Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:11-cr-00080-MOC-DSC-1)
Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant.
Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Henderson Hill, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina; Thomas N. Cochran, Assistant Federal Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Charlotte, North Carolina, for Appellee.
Before MOTZ, GREGORY, Circuit Judges, and Ellen L. HOLLANDER, United States District Judge for the District of Maryland, sitting by designation.
As permitted under North Carolina law, Appellant Zavier M. Davis received one consolidated sentence for multiple violations of state law. Based on its interpretation of the career offender enhancement in the United States Sentencing Guidelines ("Guidelines"), see U.S.S.G. § 4B1.1, the district court counted this consolidated sentence as at least "two prior felony convictions" and sentenced Davis as a career offender. We hold that a consolidated sentence under North Carolina law is a single sentence for purposes of the career offender enhancement. Thus, we vacate Davis' sentence and remand for resentencing.
In July 2004, Davis used a handgun to rob a Burger King in Charlotte, North Carolina. Davis was arrested and indicted in state court for robbery with a dangerous weapon, in violation of N.C. Gen. Stat. Ann. § 14-87.[*] On February 23, 2005, Davis used a gun to rob a McDonald's in Charlotte, North Carolina. A day prior to this robbery, Davis used a gun to assault one individual and rob another. In an eight-count indictment for the February 2005 robberies, Davis was charged with five counts of robbery with a dangerous weapon, among other things.
On September 9, 2005, Davis pled guilty in North Carolina state court to several counts in the July 2004 and February 2005 state indictments. As relevant, Davis pled guilty to six counts of robbery with a dangerous weapon ("RWDW")--one count for the 2004 robbery, and five counts for the 2005 robberies. Consistent with the plea agreement, the charges were to be consolidated for judgment as one RWDW and sentenced as a class D felony. See N.C. Gen. Stat. Ann. § 15A-1340.15(b). In exchange, the state ...