United States v. Harold Forte , 629 F. App'x 488 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4912
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAROLD LUZONE FORTE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:14-cr-00164-NCT-1)
Submitted: October 27, 2015 Decided: November 4, 2015
Before NIEMEYER and WYNN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Duberstein,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Robert A.J.
Lang, Michael F. Joseph, Assistant United States Attorneys,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harold Luzone Forte appeals the 180-month downward variant
sentence imposed following his guilty plea to being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(e) (2012). This was the statutory mandatory minimum
sentence that could have been imposed on Forte, who was
designated an armed career criminal (ACC) because he had three
prior convictions for violent felonies or serious drug offenses.
See 18 U.S.C. § 924(e)(1). For the reasons that follow, we
vacate Forte’s sentence and remand this case for resentencing in
light of United States v. Newbold, 791 F.3d 455 (4th Cir. 2015).
I.
In Forte’s presentence report, the probation officer
identified three prior North Carolina felony convictions that
qualified as predicates under the Armed Career Criminal Act, 18
U.S.C. § 924(e) (ACCA). The first was Forte’s January 1991
North Carolina conviction for felony sale or delivery of
cocaine. Forte, who was born in November of 1974, was 15 years
old when he possessed and sold less than one gram of cocaine on
two separate occasions. The two charges were consolidated for
judgment, and Forte received a three-year sentence.
This sentence was imposed under North Carolina’s Fair
Sentencing Act (NCFSA), the then-applicable sentencing scheme
and predecessor to the North Carolina Structured Sentencing Act
2
(NCSSA). 1 According to the PSR, these offenses were classified
as Class H felonies for which the statutory maximum sentence
that could have been imposed was 10 years in prison; the
presumptive sentence, however, was 3 years’ imprisonment. 2
Despite the two instances of separate criminal conduct, this was
treated as a single conviction for ACC purposes (hereinafter
“1991 Drug Conviction”).
The second ACC predicate was Forte’s November 1994 North
Carolina conviction for felony possession with intent to sell
and deliver cocaine and felony sale or delivery of cocaine, for
1
See N.C. Gen. Stat. § 15A-1340.4 (1983) (repealed eff.
Oct. 1, 1994). As this court recently explained:
Fair Sentencing grouped felonies into different
classes and assigned each class a baseline,
“presumptive” term of imprisonment. It also set a
maximum, aggravated term of imprisonment for each
offense class. By law, the judge could only deviate
from the presumptive term by finding and recording
aggravating or mitigating factors. . . . The judge
was excused, however, from making any such aggravating
or mitigating findings if, in pertinent part: 1) she
imposed a prison term pursuant to a plea arrangement;
2) she imposed the presumptive term; or 3) two or more
convictions were consolidated for judgment and the
prison term did not exceed the total of the
presumptive terms for each felony.
Newbold, 791 F.3d at 461 (citations omitted).
2
See State v. Lawrence, 667 S.E.2d 262, 264 (N.C. Ct. App.
2008) (identifying that, under the NCFSA, “a Class H felony
carried a maximum punishment of ten years, with a presumptive
term of three years”); State v. Artis, 372 S.E.2d 905, 908 (N.C.
Ct. App. 1988) (“Conviction for the sale of cocaine is a Class H
felony which has a presumptive term of three years.”).
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which Forte was sentenced to three years’ imprisonment
(hereinafter “1994 Drug Conviction”). Underlying the 1994 Drug
Conviction was Forte’s February 1993 sale of a crack rock to an
undercover police officer. This conduct occurred when Forte was
18 years old. Like the 1991 Drug Conviction, under the NCFSA,
the statutory maximum term of imprisonment that could have been
imposed for these Class H felonies was 10 years’ imprisonment. 3
See Newbold, 791 F.3d at 462 (observing that possession with
intent to sell or deliver a controlled substance was a Class H
felony); (see also supra n.2).
The third ACC predicate was Forte’s March 1995 conviction
for felony second degree murder, for which Forte received a
14-year sentence. Forte committed the underlying conduct in
November 1993, when he was 19 years old.
The probation officer recommended a total adjusted offense
level of 31. Coupled with Forte’s placement in criminal history
category VI, this yielded a Sentencing Guidelines range of 188-
235 months’ imprisonment. Forte did not object to the PSR.
Forte was 39 years old at his October 2014 sentencing, at
which defense counsel conceded that Forte was properly
designated an armed career criminal. The court adopted the PSR,
3The NCSSA applied to offenses committed on or after
October 1, 1994, see State v. Branch, 518 S.E.2d 213, 215 (N.C.
Ct. App. 1999), and thus was not applicable to this conviction.
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including the recommended Guidelines calculations and resulting
sentencing range.
Defense counsel offered an extensive argument for a
downward variance to the statutory mandatory minimum of 180
months. Counsel suggested that the court consider the age of
Forte’s ACC predicates, emphasizing that they all occurred when
Forte was a teenager. Counsel observed that the 1991 Drug
Conviction would not have qualified as an ACC predicate had
Forte been tried and convicted as a juvenile instead of as an
adult. Counsel suggested that treating as an ACC predicate a
prior conviction that accrued when the defendant was a juvenile,
but was treated as an adult under state law, caused
constitutional concerns because North Carolina permitted
significantly more harsh treatment of juvenile offenders than
other states. Thus, counsel’s objection to the ACC designation
sounded in substantive due process and equal protection.
While the district court did not go so far as to accept
Forte’s constitutional argument, it did agree that the age of
the ACC predicates made a 180-month sentence more appropriate.
After a fairly involved colloquy with Forte, the district court
imposed a 180-month sentence for the reasons identified by
defense counsel. The court further imposed a five-year term of
supervised release. This appeal timely followed.
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II.
In his brief on appeal, Forte argues that using the 1991
Drug Conviction as an ACC predicate violates his rights to due
process and equal protection. This argument turns on Forte’s
position that the same conduct would “likely have been”
prosecuted as an act of juvenile delinquency “in any other
state” than North Carolina, which elected to prosecute Forte as
an adult despite being only 15 years old when he committed the
offense. (Appellant’s Br. at 19). Forte contends that
“[a]llowing North Carolina convictions to be treated uniformly
with other states’ convictions simply does not comport with the
intent of the law, or with the constitutional guarantee of equal
protection under the law.” (Appellant’s Br. at 18-19).
Forte’s arguments are foreclosed by circuit precedent. See
United States v. Fonville, 5 F.3d 781, 785 (4th Cir. 1993)
(rejecting defendant’s argument that the use of his prior North
Carolina conviction, which accrued before he was 18 years old,
violated principles of equal protection, and noting that
Congress need not “prescribe a uniform age at which to consider
criminals adults, for federal sentencing purposes, under state
law to escape an equal protection challenge”); United States v.
Lender, 985 F.2d 151, 156-57 & n.* (4th Cir. 1993) (recognizing
“that the prosecuting jurisdiction’s determination of whether an
individual is prosecuted as a juvenile or an adult must be
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respected by later sentencing courts,” and holding that such
deference does not run afoul of the defendant’s constitutional
protections). Neither of these decisions have been vacated,
abrogated, or overruled by an en banc decision of this court or
a Supreme Court ruling. See Scotts Co. v. United Indus. Corp.,
315 F.3d 264, 271 n.2 (4th Cir. 2002) (noting that a panel of
this court cannot explicitly or implicitly overrule circuit
precedent established by a prior panel; only the United States
Supreme Court or the en banc court may do so). Moreover, Forte
cites no legal authority to support his constitutional claims.
Cf. United States v. Titley, 770 F.3d 1357 (10th Cir. 2014)
(rejecting defendant’s contention that his ACC designation
violated principles of equal protection because his predicates
would not have qualified as “serious drug offenses had he
committed them in 19 other states or the District of Columbia”
(alteration and internal quotation marks omitted)), cert.
denied, 135 S. Ct. 1520 (2015).
In light of the broad holdings in Lender and Fonville,
which remain good law, and the absence of any contrary
authority, we reject Fonte’s constitutional attacks on his ACC
designation.
III.
On June 30, 2015, after the parties filed their briefs, we
published our decision in Newbold. Forte thereafter submitted a
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Fed. R. App. P. 28(j) letter of supplemental authority, arguing
that he is entitled to relief under Newbold. We directed the
parties to submit supplemental briefs addressing what impact, if
any, Newbold had on Forte’s ACC designation. The Government
concedes that Forte’s ACC sentence is infirm under Newbold. We
agree and thus vacate Forte’s sentence on this basis.
Under the ACCA, a defendant convicted of violating § 922(g)
is subject to a statutory minimum sentence of 15 years of
imprisonment if he has sustained 3 prior convictions for either
violent felonies or serious drug offenses. 18 U.S.C. § 924(e).
A “serious drug offense” is defined, in part, as a state offense
that involves the manufacture, distribution, or possession with
intent to manufacture or distribute a controlled substance “for
which a maximum term of imprisonment of ten years or more is
prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).
In Newbold, we held that our decision in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), applies when
evaluating whether a prior conviction is a “serious drug
offense” as necessary to qualify as an ACC predicate. 791 F.3d
at 461-64. We ruled that Newbold’s 1984 North Carolina
conviction did not qualify as a serious drug offense because,
under the NCFSA, he could not have received 10 years of
imprisonment for that offense without the finding of aggravating
factors. Id. at 461-63.
8
Newbold had been sentenced for 8 offenses consolidated in 2
different judgments; without specifying the sentences for each
offense, the judgments reflected that Newbold received 7 years
of imprisonment for 3 of these offenses and 10 years of
imprisonment for the remaining 5 offenses. Id. at 461-62. The
alleged ACC predicate conviction was for possession with intent
to distribute a controlled substance, a Class H felony with a
presumptive sentence of 3 years and a maximum sentence of 10
years of imprisonment. Id. at 462.
Because the judgment did not list any aggravating factors
found by the sentencing judge, and there was no evidence in the
plea transcript to support Newbold’s admission of any
aggravating facts, we concluded that the record failed to
support the conclusion that Newbold faced up to 10 years of
imprisonment for his conviction. Id. at 463. We ruled that,
under Simmons, a court cannot infer that aggravating factors
necessary to raise a defendant’s sentencing exposure existed but
were not recorded in the judgment of conviction. Id. As there
was no allegation that aggravating factors existed or that the
sentencing court found any such aggravating factors, the maximum
sentence Newbold faced for his particular narcotics offense was
the presumptive term of three years’ imprisonment, which of
course did not satisfy the statutory definition of a “serious
drug offense.” Id. at 464. We thus vacated Newbold’s ACC
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sentence and remanded the case to the district court for further
proceedings.
The same result is had here. The Government acknowledges
that neither the 1991 Drug Conviction nor the 1994 Drug
Conviction qualify as a “serious drug offense” under Newbold
because Forte received the presumptive sentence of three years’
imprisonment for each offense and nothing in the PSR indicates
the existence of any aggravating factors that would have exposed
Forte to more than the presumptive range of imprisonment. The
Government further concedes that Forte’s 1995 conviction for
second degree murder is the lone ACC predicate and that Forte
should be resentenced in light of Newbold.
Thus, although we reject Forte’s constitutional attack on
his ACC sentence, we vacate his sentence and remand this case
for resentencing in light of Newbold. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid in the decisional process.
VACATED AND REMANDED
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