United States v. James Sellers

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4568
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES MORRIS SELLERS,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:13-cr-00783-RBH-1)
Argued: September 17, 2015 Decided: November 18, 2015
Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Shedd wrote the opinion,
in which Judge Niemeyer and Judge Keenan joined.
ARGUED: William Fletcher Nettles, IV, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Florence, South Carolina, for Appellant.
Jimmie Ewing, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee. ON BRIEF: Kimberly H. Albo,
Research and Writing Specialist, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant. William N.
Nettles, United States Attorney, Columbia, South Carolina,
Alfred W. Bethea, Jr., Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for
Appellee.
SHEDD, Circuit Judge:
A federal jury convicted James Morris Sellers of unlawfully
possessing a firearm, in violation of 18 U.S.C. § 922(g)(1). At
sentencing, the district court determined that Sellers qualified
as an armed career criminal under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), because his three prior South
Carolina drug convictions were offenses “for which a maximum
term of imprisonment of ten years or more is prescribed by law.”
On appeal, Sellers contends that his prior drug convictions
do not qualify him as an armed career criminal because the state
court sentenced him pursuant to South Carolina’s Youthful
Offender Act (“YOA”), S.C. Code Ann. § 24-19-50, which permits
courts to cap the maximum penalty for certain offenders at six
years in custody. Sellers acknowledges that we rejected this
argument in United States v. Williams, 508 F.3d 724 (4th Cir.
2007), but he contends that Williams is no longer good law in
light of our decision in United States v. Simmons, 649 F.3d 237
(4th Cir. 2011) (en banc).
We reaffirm our holding in Williams. Simmons and its
progeny reinforce Williams’ directive that courts evaluating
whether a prior conviction qualifies as a predicate for a
federal sentence enhancement look to the statutory penalty for
the prior conviction, not the sentence the defendant received.
As we explained in Williams, YOA offenses can qualify as ACCA
2
predicates because the maximum statutory penalty for the prior
conviction is unaffected by the state court’s exercise of its
discretion to impose a sentence of six years or less in custody.
We therefore affirm the district court’s judgment.
I.
In February 1999, Sellers pled guilty in state court to
three indictments charging him with possession with intent to
distribute crack cocaine, in violation of S.C. Code Ann. § 44-
53-375(B). The court sentenced him to an indeterminate period of
custody not to exceed six years pursuant to the YOA, 1 which
provides that “[i]n the event of a conviction of a youthful
offender the court may:” (1) suspend the sentence and place the
youthful offender on probation; (2) release the youthful
offender to the custody of the Youthful Offender Division before
sentencing for an observation and evaluation period of up to 60
days; (3) sentence the youthful offender indefinitely to the
custody of the Department of Corrections for treatment and
supervision until discharged by the Youth Offender Division, the
period of custody not to exceed six years; or (4) sentence the
1 Sellers and the Government both state in their briefs that
Sellers was sentenced to an indeterminate period of detention
not to exceed six years, but Sellers’ presentence report states
that the sentence was not to exceed five years. J.A. at 44 ¶ 21.
Whether Sellers was sentenced to five or six years has no impact
on our analysis.
3
youthful offender under any other applicable penalty provision,
if it finds that he will not derive benefit from treatment. S.C.
Code Ann. § 24-19-50(1)-(4) (emphasis added).
In March 2014, a federal jury found Sellers guilty of
unlawfully possessing a firearm, in violation of 18 U.S.C.
§ 922(g)(1). The presentence report (“PSR”) recommended that the
district court sentence Sellers as an armed career criminal
pursuant to the ACCA. In relevant part, the ACCA imposes an
enhanced sentence on a defendant convicted of being a felon in
possession of a firearm if the defendant has three prior
convictions for a “serious drug offense,” i.e., an offense
carrying a maximum term of imprisonment of ten years or more. 18
U.S.C. § 924(e)(2)(A). The PSR identified Sellers’ three South
Carolina drug convictions as qualifying “serious drug
offense[s]” because the statute of conviction, S.C. Code Ann.
§ 44-53-375(B), provided a maximum term of 15 years of
imprisonment for a first offense and enhanced maximum sentences
for subsequent offenses.
Sellers objected to the PSR, asserting that the three prior
drug convictions were not punishable by a maximum term of
imprisonment of ten years or more because the YOA imposed a
maximum penalty of six years in custody. Sellers recognized that
we rejected this contention in Williams, but he argued that
Williams was abrogated by our decision in Simmons. The district
4
court overruled Sellers’ objection and sentenced him as an armed
career criminal to a term of 210 months of imprisonment and five
years of supervised release.
II.
Sellers reiterates his objection on appeal, arguing, as he
did below, that his three prior drug convictions do not trigger
the ACCA’s sentence enhancement. In Sellers’ view, because the
sentencing judge failed to find that he would not derive benefit
from treatment, the YOA capped his sentence at six years.
In considering a district court’s determination that a
defendant qualifies for an enhanced sentence under the ACCA, we
review its factual findings for clear error and its legal
conclusions de novo. United States v. Wardrick, 350 F.3d 446,
451 (4th Cir. 2003).
A.
In state court, Sellers had been charged with and pled
guilty to three counts of possession with intent to distribute
crack cocaine, in violation of S.C. Code Ann. § 44-53-375(B).
Because he was 20 years old at the time of his conviction, the
state court was permitted to sentence him under the YOA. See
S.C. Code Ann. § 24-19-10(d). The YOA “sets forth a
discretionary sentencing alternative,” Williams, 508 F.3d at
727, that in pertinent part allows a sentencing judge to either
commit a youthful offender to an indefinite period of custody
5
not to exceed six years or, if he “finds that the youthful
offender will not derive benefit from treatment,” to sentence
him “under any other applicable statutory provision,” S.C. Code
Ann. § 24-19-50(3)-(4).
In Williams, the defendant argued that his prior South
Carolina conviction for possession with intent to distribute
crack cocaine did not qualify as an ACCA predicate despite the
statutory maximum penalty of 15 years in prison because he was
sentenced to an indeterminate period of confinement not to
exceed six years pursuant to the YOA. He asserted that once a
state court “uses the YOA to designate an offender as one who
cannot receive a sentence in excess of six years, the offense of
conviction no longer carries a possible term of imprisonment of
ten years or more and therefore does not qualify as a ‘serious
drug offense.’” Williams, 508 F.3d at 727. We squarely rejected
this characterization of sentencing under the YOA, reasoning
that “the language of the YOA is permissive, not mandatory.” Id.
(emphasis added).
We further rejected the contention that we “should look to
the sentence actually imposed, rather than the range of
penalties to which [the defendant] was potentially subject,” to
determine whether a prior conviction qualifies as an ACCA
predicate. Id. at 728. Because the plain language of the ACCA
“directs courts to consider the statutory penalty for the prior
6
conviction, not the sentence the defendant in fact received,” we
held that a prior conviction “qualifies as a ‘serious drug
offense’ if the statute of conviction permits the imposition of
a sentence of ten years or more.” Id. (emphasis in original). We
concluded that Williams’ prior drug conviction was one for which
a maximum term of imprisonment of ten years or more was
prescribed by law, despite the fact that the state court
exercised its discretion to sentence him to a lesser term. Id.
at 730. Sellers now asserts that this holding has been abrogated
by our decision in Simmons.
B.
In Simmons, we considered whether a prior North Carolina
conviction was punishable by more than one year in prison under
“the unique statutory regime mandated by the North Carolina
Structured Sentencing Act.” 2 649 F.3d at 239-40 (emphasis added).
2
In Simmons, we were tasked with determining whether a
prior conviction qualified as a predicate for a federal sentence
enhancement under the Controlled Substances Act (“CSA”), which
imposes a mandatory minimum of ten years in prison if the
offense conduct occurred “after a prior conviction for a felony
drug offense has become final.” 21 U.S.C. § 841(b)(1)(B). The
CSA defines “felony drug offense” as a drug-related offense
“that is punishable by imprisonment for more than one year.” 21
U.S.C. § 802(44). The critical question was therefore whether
Simmons’ prior conviction was punishable by a prison term
exceeding one year.
The issue currently before us is whether Sellers’ prior
convictions qualify as predicates under a portion of the ACCA
that imposes an enhanced sentence on offenders who have three
prior drug-related convictions punishable by ten years of
(Continued)
7
Under the Structured Sentencing Act, sentences are contingent on
two factors established by statute: the class of offense and the
offender’s prior record level. N.C. Gen. Stat. § 15A-1340.13(b).
The sentencing judge must match the class of offense and prior
record level to a statutory table, which provides three possible
sentencing ranges: a mitigated range, a presumptive range, and
an aggravated range. Id. § 15A-1340.17(c).
As we explained, “[t]he presumptive range governs unless
the judge makes written findings that identify specific factors,
separately designated by the [Structured Sentencing] Act, that
permit a departure to the aggravated or mitigated range.”
Simmons, 649 F.3d at 240. “[A] judge may select from the
aggravated range only if the State has provided a defendant
thirty-days’ notice of its intent to prove the necessary
aggravating factors and a jury has found beyond a reasonable
doubt (or the defendant has pled to) the existence of those
factors.” Id. (internal citations omitted). The sentencing judge
has no control over whether these conditions are fulfilled and
has no discretion to impose a sentence in the aggravated range
absent their satisfaction. Importantly, the Structured
imprisonment or more. See 18 U.S.C. § 924(e). Although the CSA
requires a one-year term of imprisonment while the provision of
the ACCA at issue here requires a ten-year term, we conclude
that the analysis is the same.
8
Sentencing Act does not create a discretionary, guidelines
system; rather, “it mandates specific sentences, so no
circumstances exist under the Structured Sentencing Act in which
a North Carolina judge may impose a sentence that exceeds the
top of the range set forth in the Act.” United States v.
Valdovinos, 760 F.3d 322, 326 (4th Cir. 2014) (emphasis in
original) (internal quotation marks omitted). To be clear, under
the Structured Sentencing Act, the judge has “no discretion to
impose a more severe sentence even in extraordinary cases.”
Simmons, 649 F.3d at 240 n.2 (emphasis added).
Before Simmons, we determined whether a prior North
Carolina conviction was punishable by a prison term exceeding
one year by looking to “the maximum aggravated sentence that
could be imposed for that crime upon a defendant with the worst
possible criminal history.” United States v. Harp, 406 F.3d 242,
246 (4th Cir. 2005) (second emphasis added), overruled by
Simmons, 649 F.3d 237. However, the Supreme Court’s decision in
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), caused us to
reconsider this use of a hypothetical worst-case offender.
In Carachuri, the Court examined a provision of the
Immigration and Nationality Act (“INA”) that allows an alien who
“has not been convicted of any aggravated felony” to seek
cancellation of removal. Id. at 566-67; 8 U.S.C. § 1229b(a)(3).
The INA limits “aggravated felon[ies]” in part to certain drug-
9
related offenses for which the “maximum term of imprisonment
authorized” is “more than one year.” Carachuri, 560 U.S. at 567
(quoting 18 U.S.C. § 3559(a)). The government argued that the
second of Carachuri’s two prior Texas misdemeanor drug
possession convictions qualified as an aggravated felony because
Carachuri could have received a two-year prison sentence had he
been prosecuted in federal court instead of state court. The
Supreme Court rejected this approach, explaining that it was
irrelevant whether the conduct underlying the defendant’s prior
conviction hypothetically could have received felony treatment.
The Court held instead that the dispositive question for
determining whether a defendant had committed an aggravated
felony was whether he was actually convicted of an offense
punishable by more than one year in prison. Id. at 581-82.
Applying this rationale in Simmons, we abandoned our use of
a hypothetical defendant with the worst possible criminal
history and held instead that a prior North Carolina conviction
is punishable by a prison term exceeding one year only if the
particular defendant’s offense of conviction was punishable by a
prison term exceeding one year.
C.
Here, Sellers contends that in the wake of Simmons, our
analysis of whether his prior drug convictions qualify as ACCA
predicates is governed by the maximum possible sentence that he
10
could have received once the state court decided he would
benefit from treatment under the YOA. Sellers equates the YOA
with the Structured Sentencing Act at issue in Simmons,
asserting that just as the Structured Sentencing Act forbids
North Carolina judges from imposing a sentence in the aggravated
range absent a finding of aggravating factors, the YOA prohibits
South Carolina judges from imposing a sentence greater than six
years in custody absent a finding that the youthful offender
would not benefit from treatment. He argues that, like in
Simmons, the sentencing judge in his case failed to make the
factual finding necessary to warrant a higher sentence.
Accordingly, he asserts, the YOA imposed a maximum sentence of
six years in custody, and his prior convictions do not qualify
as ACCA predicates.
Sellers’ argument is incorrect for two important reasons.
First, Sellers fails to appreciate the key distinction between
the Structured Sentencing Act and the YOA: the Structured
Sentencing Act is a legislative mandate that strictly prohibits
the sentencing judge from imposing a sentence that exceeds the
maximum fixed by the statutory chart, while the YOA is a
discretionary alternative that provides the sentencing judge
with the authority to impose an increased sentence. Second,
Sellers looks to the sentence that was actually imposed, rather
than the sentence he faced; we have repeatedly rejected this
11
approach, even after Simmons. See, e.g., United States v. Kerr,
737 F.3d 33, 38 (4th Cir. 2013), cert. denied, 134 S. Ct. 1773
(2014). Simmons and its progeny foreclose Sellers’ contention
that his sentences under the YOA do not qualify as ACCA
predicates.
1.
In Kerr, for example, the defendant argued that his prior
North Carolina convictions did not qualify as predicate felonies
for a federal sentence enhancement because the sentencing judge
exercised her discretion to impose a sentence in the Structured
Sentencing Act’s mitigated range, which provided a maximum
possible sentence of 11 months in prison, as opposed to the
presumptive range, which provided a term of 9-14 months in
prison. Id. at 36. We rejected the argument that the mitigated
range’s 11-month cap meant that Kerr’s prior conviction was not
punishable by more than one year in prison and held instead that
the presumptive range determined his maximum term of
imprisonment. Although the sentencing judge determined that
mitigating factors warranted a sentence within the mitigated
range, “the maximum possible prison that Kerr faced for his
prior state convictions” was determinative because “the judge
remained free at all times to sentence Kerr to a presumptive
prison term of up to 14 months.” Id. at 38-39 (second emphasis
added).
12
Similarly, in Valdovinos, the defendant asserted that his
prior North Carolina conviction did not qualify as a predicate
felony because he was sentenced pursuant to a plea agreement
that provided for a maximum sentence of 12 months of
imprisonment. 760 F.3d at 324-25. Despite the language of the
plea agreement, we held that the prior conviction was punishable
by a prison term exceeding one year because the Structured
Sentencing Act authorized a maximum sentence of 16 months of
imprisonment for the conviction. We emphasized “[t]hat the
sentence ultimately imposed pursuant to [Valdovinos’] plea deal
was 10 to 12 months’ imprisonment [was] irrelevant,” because
whether a prior conviction qualifies as a sentencing predicate
depends on the maximum sentence permitted, not the sentence a
defendant actually received. Id. at 327 (citing United States v.
Edmonds, 679 F.3d 169, 176 (4th Cir. 2012), vacated on other
grounds, 133 S. Ct. 376, aff’d on remand, 700 F.3d 146 (4th Cir.
2012)). We rejected Valdovinos’ contention that the plea
agreement established his maximum potential punishment because,
unlike the Structured Sentencing Act, “under which a judge may
never impose a sentence that exceeds the top of the range set
forth in the Act, . . . the sentencing judge remains free to
reject the [plea] agreement.” Id. at 328 (second emphasis added)
(internal citation and quotation marks omitted).
13
Finally, in United States v. Bercian-Flores, the defendant
argued that a prior federal conviction with a statutory maximum
sentence of five years in prison did not qualify as a predicate
felony because the mandatory Sentencing Guidelines range in
effect at the time of his sentencing was zero to six months of
imprisonment. 786 F.3d 309, 310 (4th Cir. 2015). Much like
Sellers, Bercian-Flores analogized to the North Carolina
Structured Sentencing Act, asserting that just as the sentencing
judge in Simmons failed to find the existence of aggravating
factors and thus could not impose a sentence in the aggravated
range, his sentencing judge failed to find facts that warranted
an upward departure and therefore could not impose a sentence
outside of the Guidelines range. We rejected Bercian-Flores’
argument and held that the statutory maximum sentence set by the
applicable legislative body – not the top sentence in a
guidelines range – is determinative of whether a prior
conviction constitutes a predicate felony. As we explained,
“Simmons did not change the fact that the cornerstone of our
predicate-felony analysis must be the defendant’s offense of
conviction. The qualification of a prior conviction as a
sentencing predicate does not depend on the sentence a defendant
actually received but on the maximum sentence permitted for his
offense of conviction.” Id. at 315-16 (internal alterations,
citations, and quotation marks omitted). Our conclusion hinged
14
on the fact that even under the mandatory Sentencing Guidelines
in effect at the time Bercian-Flores was sentenced for his prior
conviction, “the district court had discretion to sentence
Bercian-Flores up to the statutory maximum of five years” in
prison. Id. at 315 (emphasis added).
2.
These cases set forth two important and interrelated
principles that govern our analysis of whether a prior
conviction qualifies as a predicate for a federal sentence
enhancement after Simmons. The first is that “the cornerstone of
our predicate-felony analysis” is the maximum sentence permitted
by the defendant’s offense of conviction, not the sentence the
defendant actually received. Id. at 315-16 (citing Valdovinos,
760 F.3d at 327). The second is that “the salient question to be
asked after Simmons is whether the sentencing judge could
sentence a particular defendant” to a qualifying term of
imprisonment. Id. at 315 (emphasis in original) (citing
Valdovinos, 760 F.3d 322; Kerr, 737 F.3d 33).
The application of these principles requires us to reject
Sellers’ argument and reaffirm our holding in Williams. First,
Simmons and its progeny reinforce, rather than reject, Williams’
directive that we “consider the statutory penalty for the prior
conviction, not the sentence the defendant in fact received.”
Williams, 508 F.3d at 728 (emphasis in original). In addition,
15
we conclude that the sentencing judge could have sentenced
Sellers to more than ten years in prison for his three
violations of S.C. Code Ann. § 44-53-375(B). When Sellers
appeared before the state court to receive his sentence, the YOA
provided the sentencing judge with complete discretion to find
that Sellers would not derive benefit from treatment and to
sentence him to a term of imprisonment that exceeded ten years.
See Williams, 508 F.3d at 727; Ballard v. State, 187 S.E.2d 224,
226 (S.C. 1972) (holding that the YOA gives the trial judge “the
right, in his discretion, to impose a sentence under [any of
the] subsections” in the Act without requiring that “specific
factual findings be made a part of the record”); S.C. Code Ann.
§ 44-53-375(B) (providing maximum term of 15 years of
imprisonment for first offense and enhanced maximums for
subsequent offenses). As in Kerr, Valdovinos, and Bercian-
Flores, the fact that the sentencing judge retained the
discretion at all times to sentence Sellers to the statutory
maximum penalty controls the outcome of this case.
Consistent with Williams, we therefore hold that a prior
South Carolina conviction for which a defendant received a YOA
sentence of an indefinite period of confinement not to exceed
six years qualifies as a predicate for a federal sentence
enhancement where the statute of conviction prescribes a
qualifying term of imprisonment. Accordingly, Sellers’ three
16
South Carolina convictions for violations of S.C. Code Ann.
§ 44-53-375(B) are offenses “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), triggering the ACCA’s sentence
enhancement.
III.
For the foregoing reasons, we hold that Sellers’ three
prior South Carolina drug convictions qualify as ACCA
predicates. The district court therefore did not err in
sentencing Sellers as an armed career criminal, and the judgment
of the district court is affirmed.
AFFIRMED
17