United States v. Michael Thompson , 480 F. App'x 201 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5059
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
MICHAEL JEROME THOMPSON,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:07-cr-00035-BO-1)
Submitted: April 24, 2012 Decided: May 8, 2012
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellant. James B.
Craven, III, Durham, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This is an appeal by the United States that challenges
a sentence imposed by the district court. Concluding that the
court misapplied United States v. Simmons, 649 F.3d 237 (4th
Cir. 2011) (en banc), we vacate and remand for resentencing.
Michael Jerome Thompson pled guilty to possession of a
firearm by a felon, in violation of 18 U.S.C. § 922(g) (2006).
The district court held that Thompson’s six prior North Carolina
breaking and entering convictions were not violent felonies for
purposes of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e) (2006), which mandated a minimum sentence of 180 months’
imprisonment, sentencing Thompson to ninety-two months’
imprisonment. The Government appealed, and this court held that
a conviction for breaking and entering under North Carolina
General Statute § 14-54(a) is, as a matter of law, a “violent
felony” within the meaning of the ACCA, vacated Thompson’s
sentence, and remanded the case for resentencing. United
States v. Thompson, 588 F.3d 197, 202 (4th Cir. 2009).
Prior to the resentencing hearing, this court issued
its en banc decision in Simmons, in which we held that a North
Carolina conviction under the state’s Structured Sentencing Act
is a felony only if the actual defendant is eligible to have
imposed upon him a term of imprisonment exceeding one year,
taking into account his criminal history and the nature of his
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offense. On remand, the district court found that Thompson’s
three 1993 North Carolina breaking and entering convictions, as
well as his 1998 and 2000 North Carolina breaking and entering
convictions, did not qualify as predicate felony offenses under
the ACCA in light of Simmons. It resentenced Thompson to
ninety-two months’ imprisonment. United States v. Thompson, No.
5:07-CR-00035-BO-1 (E.D.N.C. Oct. 12, 2011) (unpublished order).
As to Thompson’s three 1993 North Carolina breaking
and entering convictions, which were sustained under the North
Carolina Fair Sentencing Act (“FSA”), effective until October 1,
1994, the district court determined that examination of the
sentence Thompson actually received, rather than the statutory
maximum under the FSA, was appropriate. Turning to the sentence
that Thompson actually received—five years’ imprisonment,
suspended—the district court found that his 1993 convictions
were not predicate felony offenses because Thompson served less
than one year in custodial incarceration.
With respect to Thompson’s 1998, 2000, and 2002 North
Carolina convictions, which were sustained under the state’s
Structured Sentencing Act, the court found that only Thompson’s
2002 conviction qualified as a predicate felony offense under
the ACCA, reasoning that Thompson received a sentence of eleven
to fourteen months’ imprisonment. However, the court concluded
that Thompson’s 1998 and 2000 convictions did not qualify as
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predicate felony offenses because Thompson received sentences of
nine to eleven months and ten to twelve months for each
conviction, respectively.
Whether a prior conviction qualifies as a predicate
offense under the ACCA is a question of statutory interpretation
that we review de novo. United States v. Foster, 662 F.3d 291,
293 (4th Cir. 2011). The ACCA provides that a defendant
convicted under 18 U.S.C. § 922(g) who has three prior
convictions for violent felonies is subject to a mandatory
minimum sentence of fifteen years’ imprisonment. 18 U.S.C.
§ 924(e)(1). A “violent felony” is any crime punishable by a
term of imprisonment exceeding one year that: “(i) has as an
element the use, attempted use, or threatened use of physical
force against” another person; or (ii) is burglary, arson, or
extortion; involves explosives; “or otherwise involves conduct
that presents a serious potential risk of physical injury to
another.” § 924(e)(2)(B). We previously ruled on appeal that
breaking and entering under N.C. Gen. Stat. § 14-54(a) is, as a
matter of law, a violent crime under the ACCA; accordingly, the
analysis of whether Thompson should have been sentenced on
remand pursuant to the ACCA turns on whether Thompson’s North
Carolina convictions were punishable by a term exceeding one
year.
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On appeal, the Government contends that Thompson was
eligible for a term of imprisonment in excess of one year under
the North Carolina FSA for each of his 1993 breaking and
entering convictions, and that Simmons does not alter this
conclusion. The fact that Thompson received a five-year
sentence, suspended, for his consolidated 1993 breaking and
entering convictions, the Government asserts, further
establishes that his convictions qualify as predicate offenses.
In response, Thompson avers that his 1993 breaking and entering
convictions were not predicate felony offenses because he served
less than a year of custodial incarceration for the convictions
after violating his probation. Even if Thompson’s 1993
convictions did not qualify as predicate offenses under the
ACCA, the Government argues, the district court erred in failing
to sentence Thompson as an armed career criminal because each of
his additional North Carolina breaking and entering convictions
from 1998, 2000, and 2002 qualify as felony offenses.
We conclude that the district court misconstrued
Simmons in finding that Thompson’s three 1993 convictions, as
well as his 1998 and 2000 convictions, did not qualify as
predicate felony offenses under the ACCA. Pursuant to Simmons,
in evaluating whether a defendant’s prior state conviction
qualifies as a felony under the ACCA, the actual sentence
imposed is irrelevant; rather, the relevant inquiry is whether
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the actual defendant was subject to a potential sentence of
greater than one year of imprisonment. Thus, following Simmons,
a court must analyze whether the particular defendant, rather
than a defendant with the worst possible criminal history, could
have received a sentence in excess of one year for the offense.
With respect to Thompson’s 1993 convictions, breaking
and entering is a Class H felony under North Carolina law, see
N.C. Gen. Stat. § 14–54 (2009); State v. Salters, 308 S.E.2d
512, 515 (N.C. Ct. App. 1983), and pursuant to North Carolina's
FSA, the presumptive sentence for a Class H felony was three
years in prison, with a maximum sentence of ten years. See
State v. Lawrence, 667 S.E.2d 262, 264 (N.C. Ct. App. 2008)
(“Under the Fair Sentencing Act, a Class H felony carried a
maximum punishment of ten years, with a presumptive term of
three years.”). Accordingly, as to each of Thompson’s 1993
breaking and entering convictions, Thompson himself was subject
to a term of imprisonment exceeding one year. These convictions
therefore all qualify as predicate felony offenses under the
ACCA.
Thompson’s North Carolina 1998 and 2000 breaking and
entering convictions likewise qualify as predicate felony
offenses, as Thompson personally, not merely a hypothetical
defendant, was subject to a maximum term of imprisonment in
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excess of one year for each offense under the state’s Structured
Sentencing Act.
Accordingly, we find that the district court erred in
failing to sentence Thompson as an armed career criminal under
the ACCA, as Thompson had six qualifying prior violent felony
convictions. We therefore vacate Thompson’s sentence and remand
for resentencing. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED
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