Wake Forest Law Review

By John Van Swearingen

On March 13, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Winston. Robert Winston (“Appellant”), currently serving a 275-month sentence for a federal firearms charge from 2002, filed a motion for post-conviction relief under 28 U.S.C. § 2255 (2012) in the United States District Court for the Western District of Virginia. Appellant asserted the sentencing enhancements applied to his case were invalidated by Johnson v. United States (“Johnson II“), a 2015 Supreme Court decision striking part of the Armed Career Criminal Act (“ACCA”) and narrowing the scope of “violent felonies” included thereunder. No. 13–7120, slip op. at 15 (U.S. June 26, 2015). The district court rejected Appellant’s arguments. On appeal, the Fourth Circuit reversed the district court, holding Virginia’s common law robbery no longer qualified as a “violent felony” under the ACCA, and remanded the case for further proceedings.

Facts and Procedural History

In 2002, Appellant was sentenced to 275 month’s imprisonment for a federal firearms charge. Appellant’s sentence was enhanced under the ACCA, which mandates a fifteen-year minimum sentence for any person convicted of a firearms offense who has three prior “violent felonies” or serious drug offenses. At the time, the ACCA had categories of “violent felonies:” those established under the statute’s force clause and those under the statute’s residual clause, which included burglaries, arsons, and any other conduct that posed a serious risk of injury to another person. Appellant had four prior then-qualifying convictions: (1) rape under the Uniform Code of Military Justice (“UCMJ”), (2) common law robbery in Virginia, (3) possession of cocaine with intent to distribute in Virginia, and (4) a federal conviction for distribution of cocaine base.

After the Supreme Court published its 2015 opinion in Johnson II, which limited the definition of “violent felony” under the ACCA by striking the residual clause for vagueness, Appellant filed the instant action asserting that neither the UCMJ rape conviction nor the Virginia robbery conviction satisfied the new definition of “violent felony.” Without the ACCA sentencing enhancements, Appellant’s maximum sentence in 2002 would have been ten years, meaning Appellant would be immediately available for release.

The district court has not yet addressed Appellant’s rape conviction. The matter before the Fourth Circuit focused solely on Appellant’s common law robbery conviction. The government argued two points to challenge Appellant’s motion for relief. First, the government argued that, since Appellant could not prove that his robbery conviction was defined a “violent felony” under the now-stricken residual clause of the ACCA, Appellant did not rely on a new rule of constitutional law and was thus foreclosed from requesting relief. Second, the government argued that common law robbery still satisfied the limited definition of “violent felony” under the ACCA.

The district court disagreed with the government’s procedural assertion but agreed with the government’s substantive assertion, and it accordingly held the Virginia crime of common law robbery was a “violent felony” under the ACCA. Appellant timely filed the instant appeal.

Appellant Relied on a New Rule of Constitutional Law for the Motion for Post-Conviction Relief.

28 U.S.C. §§ 2244(b)(2)(A), 2244(b)(4) (2012) requires that motions for post-conviction relief rely on a new rule of constitutional law. The record never established that Appellant’s common law robbery conviction was only considered for enhancement by the sentencing court under the residual clause of the ACCA struck in Johnson II. Thus, the government argued, Appellant could not show reliance on the holding in Johnson II and was, therefore, barred from moving for relief.

The Fourth Circuit agreed with the district court that the sentencing court’s failure to disclose the clause or clauses of the ACCA under which it considered Appellant’s convictions could not be fatal to Appellant’s claim. The Fourth Circuit held that any movant seeking post-conviction relief, where that movant’s conviction may have been enhanced based on the now-void residual clause struck in Johnson II, may challenge their sentence. To hold otherwise, according to the Fourth Circuit, would punish defendants for a sentencing court’s discretion in failing to disclose the clauses of the ACCA under which it evaluated the defendant’s enhancements.

The Virginia Crime of Common Law Robbery Is Not a Violent Crime under the ACCA

Appellant challenged the district court’s holding that the Virginia crime of common law robbery was a “violent felony” under the ACCA. Since the residual clause was struck from the ACCA, all violent felonies must meet the definition established in the statute’s force clause, 18 U.S.C. § 924(e)(2)(B)(i) (2012), which requires an element of “use, attempted use, or threatened use of physical force against the person of another.” The force clause was clarified in the Supreme Court’s 2010 decision in United States v. Johnson (“Johnson I”), which defined “physical force” in the statute to mean only “violent force” that could cause injury or pain. No. 08–6925, slip op. at 6 (U.S. Mar. 2, 2010).

The Fourth Circuit noted that the Supreme Court’s decision in Moncrieffe v. Holder required the reviewing court to consider the “minimum conduct criminalized” by a state criminal law. No. 11–702, slip op. at 5 (U.S. Apr. 23, 2013). In Virginia, a common law robbery conviction can be sustained where a defendant steals the property of another by “violence or intimidation.” Pierce v. Commonwealth, 138 S.E.2d 28, 31 (Va. 1964). The “violence” element of the crime can be satisfied by the bare minimum of physical force needed to overcome a victim’s resistance. Maxwell v. Commonwealth, 183 S.E. 452, 454 (Va. 1936).

A conviction for common law robbery could therefore be sustained where only a minimum amount of “violence” is used – for example, turning someone’s body in order to grab their purse. Injurious “violent force” is not an element of the crime. The crime is therefore not a “violent felony” for sentencing enhancements under the ACCA. Thus, the Fourth Circuit reversed the district court’s holding and held the Virginia crime of common law robbery did not meet the standard set by the force clause of the ACCA, as clarified in Johnson I.


The Fourth Circuit affirmed the district court’s holding regarding the procedural matter but reversed the district court’s substantive holding regarding the status of common law robbery as a “violent felony.” Thus, the district court’s judgment was vacated, and the case was remanded for further consideration regarding Appellant’s rape conviction under the UCMJ.


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.


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.”

The Facts

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.

By Taylor Ey

On June 8, 2015, the Fourth Circuit issued its published opinion in the criminal case United States v. Span.  The United States prosecuted Defendant Gary Span in the United States District Court for the Western District of North Carolina, and Span was sentenced to a mandatory minimum sentence of fifteen years in prison pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”).  Span appealed the decision, and the Fourth Circuit vacated and remanded for resentencing.

Facts of the Felony Charge and the Sentencing Hearing

Span was indicted and charged with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).  He pleaded guilty.  At the sentencing hearing, the government argued for enhanced sentencing for this conviction under the ACCA.  According to the government, Span’s criminal record included several previous convictions, all violent felonies committed on separate occasions, and thus enhanced sentencing was warranted.  Span challenged the government’s argument that he was an armed career criminal, stating that the documents upon which the government was relying to show his previous convictions were ambiguous, the ambiguity was to be construed in his favor, and the sentencing enhancement should not be applied.  The district court sided with the government, finding that three of Span’s previous robbery convictions supported the enhancement.  Even though two of the robberies occurred at the same location and involved the same corporate victim, each offense involved a different individual victim who was in danger according to the district court.

Enhanced Sentencing Under the ACCA Requires Three Previous Convictions “Committed on Occasions Different from One Another”

The government must show by preponderant evidence that the defendant committed three previous violent felonies or serious drug offenses on separate occasions for enhanced sentencing of the defendant under the ACCA.

Mixed Question of Law and Fact

The Court reviewed the district court’s legal conclusions de novo and its factual findings for clear error.  The legal conclusions, according to the Court, were whether Span’s qualifying convictions were committed on occasions separate from one another.  The Court looked to the district court’s factual findings that supported its legal conclusions and found that they were in clear error, and thus could not hold, as a matter of law, that the robbery offenses were “committed on occasions different from one another.”

The Judicial Factfinding at Sentencing Was Not Properly Limited in the Sources of Evidence and  Was Clear Error

A sentencing judge may examine a limited number of resources in cases involving prior guilty pleas, including the charging document, plea agreement, and the plea transcript between judge and defendant or comparable document.  In this case, there was a question of when Span’s three previous robberies occurred, and the sentencing judge was limited to the approved documents.  According to the Fourth Circuit, the sentencing judge clearly erred in finding that the documents proved by preponderant evidence that the three offenses were committed on separate dates.

The Previous Crimes Did Not Arise Out of Separate and Distinct Criminal Episodes

The Court looked to the same limited resources for facts applicable to a multi-factor test to determine whether the previous crimes arose out of separate and distinct criminal episodes.  The factors examined by the Court were “(1) whether the offenses arose in different geographic locations; (2) whether the nature of each offense was substantively different; (3) whether each offense involved different victims; (4) whether each offense involved different criminal objectives; and (5) whether the defendant had the opportunity after committing the first-in-time offense to make a conscious and knowing decision to engage in the next-in-time offense.”  Because the weight of the factors did not demonstrate that Span’s previous robbery convictions were separate and distinct criminal episodes, the district court erred in applying the ACCA enhancement to Span’s sentence.

The Fourth Circuit Vacated and Remanded for Resentencing

Because the United States government failed to prove by preponderant evidence that Span’s prior felonies were separate and distinct episodes for purposes of evoking the mandatory sentencing under the ACCA, the Fourth Circuit vacated the district court decision and remanded the case.

One Judge Dissenting

In this case, the dissenting judge disagreed with the majority, noting that the district court properly found sufficient facts in the evidence presented to it by the United States government.  The district court’s factual findings are afforded great deference under the applicable standard of review, and therefore, according to the dissenter, the district court’s findings must be upheld because they were plainly permissible. While the district court’s findings may admittedly appear unjust, the district court applied the proper standard according to precedent: a preponderance of the evidence. Because the district court was not in clear error when it found that the three prior incidents occurred on separate dates by a preponderance of the evidence, the dissenter could not agree with the majority’s decision.