By: Mikhail Petrov
On June 30, 2015, in the criminal case of United States v. Newbold, the Fourth Circuit issued a published opinion vacating Joseph K. Newbold’s sentence and remanding the case for proceeding consistent with the Court’s opinion. In this case, the Fourth Circuit examined whether Newbold’s guilty plea from 2005, paired with three preceding convictions from 1980, 1981, and 1984, made him an “armed career criminal.” The Armed Career Criminal Act mandates a fifteen-year mandatory-minimum prison term for anyone who violates 18 U.S.C. § 992(g) (felon in possession of a firearm) and has had three previous “serious drug offense” convictions. The Fourth Circuit found that Newbold does not possess the requisite, predicate “serious drug offenses” to make him an “armed career criminal.”
On September 8, 2005, Newbold pleaded guilty to a felon in possession of a firearm count in violation of 18 U.S.C. § 922(g)(1) (felon in possession of a firearm). After a three-level reduction for acceptance of responsibility, the Presentence Investigation Report (PSR) calculated an offense level of 31 and a criminal history category of IV. The PSR used the “armed career criminal” guideline over the “career offender” guideline because it resulted in a higher sentence. The PSR cited three North Carolina convictions from 1980, 1981, and 1984 as basis for enhancing the penalties. Additionally, PSR noted a statutory mandatory-minimum prison term of fifteen years under the Armed Career Criminal Act (ACCA). Although Newbold objected to the ACCA enhancement, the district court overruled. Newbold was sentenced to 18.8 years in prison followed by five years of supervised release.
Newbold appealed the “armed career criminal” designation, arguing that his three convictions from the 1980’s should not count as ACCA predicates because all of them received an imprisonment of less than ten year. Since the three convictions were for less than ten years, they could not be “serious drug offenses” as defined by the statute.
The Fourth Circuit examined Newbold’s appeal in 2007, and applied United States v. Harp, which stated that “convictions could be considered punishable by ten years if the sentencing law allowed for the possibility of any defendant to be sentenced to ten years’ imprisonment regardless of the maximum punishment applicable to the circumstances of the instant defendant.” Because the maximum that Newbold would have received was ten years, he was indeed convicted of three “serious drug offenses.”
Newbold continued to appeal his conviction in the midst of several changes in Fourth Circuit precedent. In May 2013, the Supreme Court granted Newbold’s certiorari. While the case was pending, the Fourth Circuit decided Miller v. United States, which again undermined the precedent by announcing that United States v. Simmons was retroactively applicable on collateral review, and thus to Newbold’s case. Previously, Simmons overturned Harp by stating that “federal courts should not apply hypothetical sentencing enchantments” and thereby lump all defendants into the same category for sentencing purposes. United States v. Simmons, 649 F.3d 237, 249 (4th Cir. 2011). The Supreme Court then remanded back to the Fourth Circuit for further consideration because Miller made Simmons applicable to Newbold’s case. Due to the lengthy history of Newbold’s case, the Fourth Circuit denied the government’s motion to remand back to district court because everything needed to decide the purely legal question was already available.
The Rule of the Case
Newbold challenges his erroneous designation as an “armed career criminal” under the ACCA. The ACCA designates an “armed career criminal” as anyone with three “serious drug offense” convictions. The ACCA also mandates a fifteen-year mandatory-minimum prison term for an “armed career criminal.” See 18 U.S.C. § 924 (e)(1). A “serious drug offense” is defined in pertinent part as “an offense under State law, involving manufacturing, distribution, or possessing 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). If Newbold was not designated as an “armed career criminal,” he would have faced a ten-year maximum sentence for his felon in possession conviction.
The Reasoning of the Fourth Circuit
The Fourth Circuit first noted that Newbold may challenge his sentence. A post-conviction change in the law made rendering the defendant’s conduct no longer criminal can be corrected by a 28 U.S.C. § 2255 motion. Citing Welch v. United States, the Fourth Circuit also stated that circumstances where a change in law reduces the defendant’s statutory maximum sentence below the imposed sentence has long been cognizable on collateral review. Welch v. United States, 604 F.3d 408, 412-13 (7th Cir. 2010). Therefore, Newbold may challenge his sentence on collateral review.
Newbold challenged only the use of his 1984 conviction as an ACCA predicate. The alleged federal predicate was a possession with intent to sell and deliver a controlled substance (the “PWID” offense). The PWID offense was a class H felony, which carried a presumptive term of three years and a maximum of ten years. The Fourth Circuit determined that an analysis of the “maximum sentence that a particular defendant could have received” requires an examination of a defendant’s “offense class” and the applicability of the “aggravated sentencing range.” This is in contrast to the Fourth Circuit’s previous reliance on Harp, where the Court looked to “the maximum aggravated sentence that could be imposed for the crime upon a defendant with the worst possible criminal history.” 406 F.3d at 246. Harp has since been overruled by Simmons, which guided the Fourth Circuit opinion in this case. Simmons is applicable to the case at hand through Miller.
There is nothing in the record to indicate that Newbold’s PWID offense could have been punished by the ten year maximum. Simmons instructs that the court look at the conviction itself, and in this case there were no aggravating factors supporting a sentence for the ten year maximum. 694 F.3d at 243.
In contrast, because the state court was not required to record aggravating factors, the government urged the Fourth Circuit to assume their existence. The Fourth Circuit reasoned that such type of speculation would “turn Simmons on its head.” The Fourth Circuit further stated that such an approach would return the inquiry back to the Harp era’s problem of the “worst-case defendant.”
Accordingly, the Fourth Circuit followed Simmons to consider not the hypothetical “worst-case defendant,” but the specific criminal history of Newbold. The Fourth Circuit stated that it is clear that the maximum sentence Newbold faced for the PWID offense was three years. Therefore, the 1984 offense was not a “serious drug offense” because the maximum sentence that Newbold could have received was less than ten years. Because ACCA requires three “serious drug offenses,” and there are at most two here, Newbold cannot be held as an “armed career criminal.”
The Fourth Circuit Vacated Newbold’s Sentence
The Fourth Circuit held that Joseph K. Newbold did not commit a “serious drug offence” in 1984 and therefore cannot be considered an “armed career criminal.” Newbold should not have received the fifteen-year minimum sentence mandated by the ACCA for “armed career criminals.” Therefore, the Fourth Circuit vacated Newbold’s sentence and remanded the case for proceeding consistent with its opinion.
Wake Forest University School of Law’s Appellate Advocacy Clinic, under the guidance of Professor John J. Korzen, argued this case on behalf of Joseph K. Newbold.