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By Sarah Walton

On December 21, 2015, the Fourth Circuit issued a published opinion in the criminal case of United States v. Barlow. The Fourth Circuit affirmed the district court’s holding in part, reversed in part, and remanded the case for resentencing.

The District Court Enhances Barlow’s Sentence Based on Status as Armed Career Criminal

Defendant Camden Barlow (“Barlow”) was indicted on May 27, 2014 on the charge of possession of a firearm after committing three violent state felonies. Barlow was indicted based on convictions of two counts of felony speeding to elude arrest and two counts of felony breaking and entering. Barlow pled guilty and received an enhanced fifteen-year sentence after the district court classified him as an armed career criminal under the Armed Career Criminal Act (“ACCA”).

At sentencing, Barlow argued that his prior convictions did not classify him as an armed career criminal and contended that none of these convictions constituted felonies. The district court rejected both of Barlow’s arguments and applied the armed career criminal sentencing enhancement, which resulted in a 180-month sentence of imprisonment. Barlow appealed on the grounds that (1) his convictions for speeding to elude arrest were not felonies that qualified as violent under the ACCA and (2) his prior convictions for speeding to elude arrest and breaking and entering did not constitute felonies and, as a result, he could not be classified as a felon in possession of a firearm.

Barlow’s Convictions for Speeding to Elude Arrest No Longer Qualify as Felonies Under the ACCA

First, Barlow argued that his conviction for speeding to elude arrest did not qualify under the ACCA as a felony. The Fourth Circuit found that this crime was not on the ACCA’s list of crimes that qualified for a sentencing enhancement. The Fourth Circuit reasoned that if the crime was not listed in the ACCA, it must fall within the ACCA’s residual clause. A crime falls in the residual clause when it “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

However, after Barlow’s conviction, the Supreme Court invalidated the ACCA’s residual clause in Johnson v. United States, holding that the clause was unconstitutionally vague. As a result, the Fourth Circuit reasoned that because Barlow’s felonies for speeding to elude arrest were no longer valid under the ACCA, the case must be remanded for resentencing.

Barlow’s Previous Convictions Qualify as Felonies 

Next, Barlow argued that his prior convictions did not constitute felonies and therefore he could not be considered a felon in possession of a firearm under 19 U.S.C. § 922(g).  A prior felony conviction in which a defendant’s sentence is punishable by imprisonment that exceeds one year qualifies as a felony under United States v. Simmons.

To determine if Barlow faced a prison term that exceeded one year, the Fourth Circuit looked to North Carolina’s Justice Reinvestment Act (“NCJRA”), which was enacted in 2011 and revised many of the sentencing regimes in North Carolina. NCJRA requires that nine months prior to the expiration of a prison term, individuals with felony convictions enter into a mandatory post-release supervision period. NCJRA also extended many of the minimum sentence requirements for felonies, including those committed by Barlow. Under the old sentencing structure, Barlow’s maximum term of imprisonment would have been ten months. However, under the NCJRA, Barlow’s maximum term of imprisonment was nineteen months.

Barlow argued that because the NCJRA mandated a period of post-release supervision nine months prior to the expiration of the maximum sentence, his sentence would not have exceeded one year. However, the Fourth Circuit reasoned that the NCJRA’s language indicated that post-release supervision was part of the term of imprisonment. As a result, the Fourth Circuit affirmed the district court’s decision on this point.

The Fourth Circuit Affirms in Part, Reverses in Part, and Remands for Resentencing

The Fourth Circuit affirmed the district court’s holding on the classification of Barlow’s felonies under 922(g), but reversed on the issue of Barlow’s classification as an armed career criminal and remanded for resentencing.

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