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Sorting out what’s a felony – deciphering North Carolina’s structured sentencing law

The Armed Career Criminal Act (ACCA) is one of the harshest federal gun laws. If a defendant has three or more violent felonies or serious drug crimes, the penalty for being a felon-in-possesion of a firearm goes from a maximum of ten years’ incarceration to a mandatory minimum of fifteen years and a maximum of life. Camden Barlow entered a guilty plea to being a felon-in-possesion knowing that the government believed that he was an Armed Career Criminal. After he pled, however, he sought at sentencing to first undo his plea by arguing that none of his prior convictions qualified him as a felon under 18 U.S.C. § 922(g). He alternatively argued that even if he were a felon-in-possesion, he did not have the requisite three prior convictions for violent felonies required by the ACCA. He lost in the district court on both arguments.

The two issues in the case were: (1) What is a felony? and (2) What is a violent felony?. As with many terms of art in federal sentencing, what seems like an easy question becomes complex when its answer requires delving into state sentencing procedures. For ease of application, federal sentencing law says that any crime, whether a state classifies it as a felony or a misdemeanor, is a federal felony if its maximum penalty is over one year in jail. Seems simple enough, but in practice it isn’t.

Barlow is another case where the real action took place in a state courtroom well before the federal case got underway. Barlow had a number of prior convictions. Relevant to the appeal were two convictions for felony speeding to elude arrest and two convictions for felony breaking and entering. He also had a prior juvenile adjudication of delinquency for discharging a weapon into occupied property that could be used in his federal sentencing. During sentencing, the district court found that the two breaking and entering charges were from the same incident, so they should be counted as just one conviction for criminal history calculations. He therefore had four total prior offenses that the government argued, and the district court found, were ACCA crimes of violence.

The easier of the two issues was whether Barlow was properly sentenced under the ACCA. By the time the case made it to the Court of Appeals, the government had to concede he was not. During the time of Barlow’s sentencing and the appeal, the Supreme Court decided Johnson v. United States which held the portion of the ACCA’s definition of “violent felony” upon which Barlow’s classification rested to be unconstitutional.

Whether any of his prior convictions were felonies was the more complicated question. North Carolina uses a structured sentencing scheme wherein the length of a felony sentence is based on a defendant’s criminal record as well as the class of the offense. The sentencing statute also mandates a period of post-release supervision for all people convicted of felony offenses. The issue in Barlow was whether the mandatory nine-month post-release supervision should count as part of the maximum penalty for his prior convictions.

At the time he was sentenced, those offenses carried a maximum sentence of ten months’ incarceration – too short a sentence to disqualify him from gun ownership. If the post-release supervision was part of the sentence, the maximum rose to nineteen months’ incarceration and he was prohibited from possessing firearms. The Court found that the post-release supervision was a part of the sentence for a few different reasons.

First, it found that because the North Carolina legislature provided for the mandatory supervision in its felony imprisonment statute, this suggested the legislature considered it part of a term of imprisonment. Second, the North Carolina statute also stated that supervisees who abscond from supervision or commit a new offense while under supervision have to serve out the balance of the time they would have spent on supervision in prison. Third, the Court looked to prior North Carolina appellate decisions that supported the government’s position. Finally, the North Carolina statute differed from the federal supervised release statute enough that the Court found the North Carolina statute did not follow the federal model of imprisonment followed by release that was separate from the sentence.

Barlow’s case was remanded for a new sentencing. On remand, he will face no more than ten years incarceration, in contrast to the fifteen years he received at his first sentencing.

Congratulations to Kathleen Gleason from the Office of the Federal Public Defender for the Middle District of North Carolina for the victory in this case.