Argued March 24, 2015
Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. (1:05-cr-00262-TDS-1; 1:08-cv-00698-TDS-PTS). Thomas D. Schroeder, District Judge.
Ashley N. Waring, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant.
Michael Francis Joseph, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
John J. Korzen, Director, Kathleen A. Bradway, Third-Year Student, Appellate Advocacy Clinic, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant.
Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Before KING and GREGORY, Circuit Judges, and DAVIS, Senior Circuit Judge. Judge Gregory wrote the opinion, in which Judge King and Senior Judge Davis joined.
GREGORY, Circuit Judge
Joseph Newbold pleaded guilty in 2005 to being a felon in possession of a firearm. At sentencing, the district court found he possessed three prior North Carolina state court convictions that triggered enhancements under the Armed Career Criminal Act (ACCA), including a fifteen-year mandatory-minimum prison term. Newbold objected that at least one of these convictions should not have been considered a predicate " serious drug offense" because it was not punishable by a term of ten years of imprisonment. On this basis, he continued to challenge his designation as an armed career criminal on direct appeal, by 28 U.S.C. § 2255 motion, and by petition to the Supreme Court. The Supreme Court granted Newbold's petition and vacated our decision affirming the district court's denial of the § 2255 motion. It remanded the case to us for consideration in light of Miller v. United States, 735 F.3d 141 (4th Cir. 2013), which declared United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), retroactively applicable on collateral review.
For the reasons that follow, we conclude that, pursuant to Miller, a petitioner may challenge on collateral review a Simmons error resulting in his erroneous designation as an armed career criminal. We deny the government's motion to remand the case to the district court, and we vacate Newbold's sentence and remand for further proceedings consistent with this opinion.
On September 8, 2005, Newbold pleaded guilty to distributing 5.3 grams of 5-Methoxy-alpha-methyltryptamine in violation of 21 U.S.C. § 841(a)(1); money laundering in violation of 18 U.S.C. § 1956(a)(3)(B); and possessing a firearm in violation of 18 U.S.C. § 922(g)(1). The
Presentence Investigation Report (PSR) grouped the three counts and used the felon in possession count, because it produced the highest adjusted offense level, to determine the Sentencing Guidelines calculations for the group. After a three-level reduction for acceptance of responsibility, the PSR calculated an offense level of 31 and a criminal history category of VI. Although Newbold also qualified as a career offender, the PSR used the armed career criminal Guideline because it resulted in a higher offense level. See U.S.S.G. § 4B1.4(b). The PSR cited three North Carolina convictions from 1980, 1981, and 1984 as the basis for enhanced penalties under 18 U.S.C. § 924(e) and the corresponding Section 4B1.4 of the Guidelines. It therefore recommended a range of 188-235 months, or 15.7-19.6 years, while also noting a statutory mandatory-minimum prison term of fifteen years. Newbold entered written objections to these ACCA enhancements, ...