US v. Harold Luzone Forte

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00164-NCT-1 Copies to all parties and the district court/agency. [999692763].. [14-4912]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4912

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAROLD LUZONE FORTE,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
N. Carlton Tilley,
Jr., Senior District Judge. (1:14-cr-00164-NCT-1)

Submitted:

October 27, 2015

Before NIEMEYER
Circuit Judge.

and

WYNN,

Decided:

Circuit

Judges,

November 4, 2015

and

DAVIS,

Senior

Vacated and remanded by unpublished per curiam opinion.

Louis C. Allen, Federal Public Defender, John A. Duberstein,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley Rand, United States Attorney, Robert A.J.
Lang, Michael F. Joseph, Assistant United States Attorneys,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Harold Luzone Forte appeals the 180-month downward variant
sentence imposed following his guilty plea to being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(e)

(2012).

sentence

that

This
could

was

have

the
been

statutory
imposed

mandatory

on

Forte,

minimum
who

was

designated an armed career criminal (ACC) because he had three
prior convictions for violent felonies or serious drug offenses.
See 18 U.S.C. § 924(e)(1).

For the reasons that follow, we

vacate Forte’s sentence and remand this case for resentencing in
light of United States v. Newbold, 791 F.3d 455 (4th Cir. 2015).
I.
In

Forte’s

presentence

report,

the

probation

officer

identified three prior North Carolina felony convictions that
qualified as predicates under the Armed Career Criminal Act, 18
U.S.C. § 924(e)

(ACCA).

North

conviction

Carolina

cocaine.

The

first

for

was

felony

Forte’s
sale

or

January
delivery

1991
of

Forte, who was born in November of 1974, was 15 years

old when he possessed and sold less than one gram of cocaine on
two separate occasions.

The two charges were consolidated for

judgment, and Forte received a three-year sentence.
This
Sentencing

sentence
Act

was

(NCFSA),

imposed
the

under

North

then-applicable

Carolina’s
sentencing

Fair
scheme

and predecessor to the North Carolina Structured Sentencing Act
2

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(NCSSA). 1

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According to the PSR, these offenses were classified

as Class H felonies for which the statutory maximum sentence
that

could

presumptive

have

been

sentence,

imposed

was

however,

was

10
3

years
years’

in

prison;

the

imprisonment. 2

Despite the two instances of separate criminal conduct, this was
treated as a single conviction for ACC purposes (hereinafter
“1991 Drug Conviction”).
The second ACC predicate was Forte’s November 1994 North
Carolina conviction for felony possession with intent to sell
and deliver cocaine and felony sale or delivery of cocaine, for
1

See N.C. Gen. Stat. § 15A-1340.4 (1983) (repealed eff.
Oct. 1, 1994). As this court recently explained:
Fair
Sentencing
grouped
felonies
into
different
classes
and
assigned
each
class
a
baseline,
“presumptive” term of imprisonment.
It also set a
maximum, aggravated term of imprisonment for each
offense class.
By law, the judge could only deviate
from the presumptive term by finding and recording
aggravating or mitigating factors. . . .
The judge
was excused, however, from making any such aggravating
or mitigating findings if, in pertinent part: 1) she
imposed a prison term pursuant to a plea arrangement;
2) she imposed the presumptive term; or 3) two or more
convictions were consolidated for judgment and the
prison
term
did
not
exceed
the
total
of
the
presumptive terms for each felony.
Newbold, 791 F.3d at 461 (citations omitted).
2

See State v. Lawrence, 667 S.E.2d 262, 264 (N.C. Ct. App.
2008) (identifying that, under the NCFSA, “a Class H felony
carried a maximum punishment of ten years, with a presumptive
term of three years”); State v. Artis, 372 S.E.2d 905, 908 (N.C.
Ct. App. 1988) (“Conviction for the sale of cocaine is a Class H
felony which has a presumptive term of three years.”).

3

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Forte

was

sentenced

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to

three

(hereinafter “1994 Drug Conviction”).

years’

imprisonment

Underlying the 1994 Drug

Conviction was Forte’s February 1993 sale of a crack rock to an
undercover police officer.
18 years old.

This conduct occurred when Forte was

Like the 1991 Drug Conviction, under the NCFSA,

the statutory maximum term of imprisonment that could have been
imposed for these Class H felonies was 10 years’ imprisonment. 3
See Newbold, 791 F.3d at 462 (observing that possession with
intent to sell or deliver a controlled substance was a Class H
felony); (see also supra n.2).
The third ACC predicate was Forte’s March 1995 conviction
for

felony

second

14-year sentence.

degree

murder,

for

which

Forte

received

a

Forte committed the underlying conduct in

November 1993, when he was 19 years old.
The probation officer recommended a total adjusted offense
level of 31.

Coupled with Forte’s placement in criminal history

category VI, this yielded a Sentencing Guidelines range of 188235 months’ imprisonment.

Forte did not object to the PSR.

Forte was 39 years old at his October 2014 sentencing, at
which

defense

counsel

conceded

designated an armed career criminal.
3

that

Forte

was

properly

The court adopted the PSR,

The NCSSA applied to offenses committed on or after
October 1, 1994, see State v. Branch, 518 S.E.2d 213, 215 (N.C.
Ct. App. 1999), and thus was not applicable to this conviction.

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including the recommended Guidelines calculations and resulting
sentencing range.
Defense

counsel

offered

to

the

an

extensive

statutory

argument

mandatory

minimum

for
of

a

downward

variance

180

months.

Counsel suggested that the court consider the age of

Forte’s ACC predicates, emphasizing that they all occurred when
Forte

was

Conviction

a

teenager.

would

not

Counsel

have

observed

qualified

as

that

an

ACC

the

1991

Drug

predicate

had

Forte been tried and convicted as a juvenile instead of as an
adult.

Counsel suggested that treating as an ACC predicate a

prior conviction that accrued when the defendant was a juvenile,
but

was

treated

constitutional

as

concerns

an

adult

under

state

law,

because

North

Carolina

caused

permitted

significantly more harsh treatment of juvenile offenders than
other states.

Thus, counsel’s objection to the ACC designation

sounded in substantive due process and equal protection.
While the district court did not go so far as to accept
Forte’s constitutional argument, it did agree that the age of
the ACC predicates made a 180-month sentence more appropriate.
After a fairly involved colloquy with Forte, the district court
imposed

a

180-month

defense counsel.

sentence

for

the

reasons

identified

by

The court further imposed a five-year term of

supervised release.

This appeal timely followed.

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II.
In his brief on appeal, Forte argues that using the 1991
Drug Conviction as an ACC predicate violates his rights to due
process and equal protection.
position
prosecuted

that
as

the
an

same

act

of

This argument turns on Forte’s

conduct

would

“likely

juvenile

delinquency

have

been”

any

other

“in

state” than North Carolina, which elected to prosecute Forte as
an adult despite being only 15 years old when he committed the
offense.

(Appellant’s

Br.

at

19).

Forte

contends

that

“[a]llowing North Carolina convictions to be treated uniformly
with other states’ convictions simply does not comport with the
intent of the law, or with the constitutional guarantee of equal
protection under the law.”

(Appellant’s Br. at 18-19).

Forte’s arguments are foreclosed by circuit precedent.
United

States

v.

Fonville,

5

F.3d

781,

785

(4th

Cir.

See
1993)

(rejecting defendant’s argument that the use of his prior North
Carolina conviction, which accrued before he was 18 years old,
violated

principles

of

equal

protection,

and

noting

that

Congress need not “prescribe a uniform age at which to consider
criminals adults, for federal sentencing purposes, under state
law to escape an equal protection challenge”); United States v.
Lender, 985 F.2d 151, 156-57 & n.* (4th Cir. 1993) (recognizing
“that the prosecuting jurisdiction’s determination of whether an
individual

is

prosecuted

as

a

juvenile
6

or

an

adult

must

be

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respected by later sentencing courts,” and holding that such
deference does not run afoul of the defendant’s constitutional
protections).

Neither of these decisions have been vacated,

abrogated, or overruled by an en banc decision of this court or
a Supreme Court ruling.

See Scotts Co. v. United Indus. Corp.,

315 F.3d 264, 271 n.2 (4th Cir. 2002) (noting that a panel of
this

court

cannot

explicitly

or

implicitly

overrule

circuit

precedent established by a prior panel; only the United States
Supreme Court or the en banc court may do so).

Moreover, Forte

cites no legal authority to support his constitutional claims.
Cf. United States v. Titley, 770 F.3d 1357 (10th Cir. 2014)
(rejecting

defendant’s

contention

that

his

ACC

designation

violated principles of equal protection because his predicates
would

not

have

qualified

as

“serious

drug

offenses

had

he

committed them in 19 other states or the District of Columbia”
(alteration

and

internal

quotation

marks

omitted)),

cert.

denied, 135 S. Ct. 1520 (2015).
In
which

light
remain

of

the

good

broad

law,

holdings

and

the

in

Lender

absence

of

and

Fonville,

any

contrary

authority, we reject Fonte’s constitutional attacks on his ACC
designation.
III.
On June 30, 2015, after the parties filed their briefs, we
published our decision in Newbold.
7

Forte thereafter submitted a

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Fed. R. App. P. 28(j) letter of supplemental authority, arguing
that he is entitled to relief under Newbold.

We directed the

parties to submit supplemental briefs addressing what impact, if
any, Newbold had on Forte’s ACC designation.

The Government

concedes that Forte’s ACC sentence is infirm under Newbold.

We

agree and thus vacate Forte’s sentence on this basis.
Under the ACCA, a defendant convicted of violating § 922(g)
is

subject

to

a

statutory

minimum

sentence

of

15

years

of

imprisonment if he has sustained 3 prior convictions for either
violent felonies or serious drug offenses.

18 U.S.C. § 924(e).

A “serious drug offense” is defined, in part, as a state offense
that involves the manufacture, distribution, or possession 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).

In Newbold, we held that our decision in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), applies when
evaluating

whether

a

prior

conviction

is

a

“serious

drug

offense” as necessary to qualify as an ACC predicate.

791 F.3d

at

Carolina

461-64.

We

ruled

that

Newbold’s

1984

North

conviction did not qualify as a serious drug offense because,
under

the

NCFSA,

he

could

not

have

received

10

years

of

imprisonment for that offense without the finding of aggravating
factors.

Id. at 461-63.
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Newbold had been sentenced for 8 offenses consolidated in 2
different judgments; without specifying the sentences for each
offense, the judgments reflected that Newbold received 7 years
of

imprisonment

for

3

of

these

offenses

imprisonment for the remaining 5 offenses.

and

10

years

Id. at 461-62.

of
The

alleged ACC predicate conviction was for possession with intent
to distribute a controlled substance, a Class H felony with a
presumptive sentence of 3 years and a maximum sentence of 10
years of imprisonment.

Id. at 462.

Because the judgment did not list any aggravating factors
found by the sentencing judge, and there was no evidence in the
plea

transcript

aggravating

to

facts,

we

support

Newbold’s

concluded

that

the

admission

of

any

record

failed

to

support the conclusion that Newbold faced up to 10 years of
imprisonment for his conviction.

Id. at 463.

We ruled that,

under Simmons, a court cannot infer that aggravating factors
necessary to raise a defendant’s sentencing exposure existed but
were not recorded in the judgment of conviction.

Id.

As there

was no allegation that aggravating factors existed or that the
sentencing court found any such aggravating factors, the maximum
sentence Newbold faced for his particular narcotics offense was
the

presumptive

term

of

three

years’

imprisonment,

which

of

course did not satisfy the statutory definition of a “serious
drug offense.”

Id. at 464.

We thus vacated Newbold’s ACC
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sentence and remanded the case to the district court for further
proceedings.
The same result is had here.
that

neither

the

1991

Drug

The Government acknowledges

Conviction

nor

the

1994

Drug

Conviction qualify as a “serious drug offense” under Newbold
because Forte received the presumptive sentence of three years’
imprisonment for each offense and nothing in the PSR indicates
the existence of any aggravating factors that would have exposed
Forte to more than the presumptive range of imprisonment.

The

Government

for

further

concedes

that

Forte’s

1995

conviction

second degree murder is the lone ACC predicate and that Forte
should be resentenced in light of Newbold.
Thus, although we reject Forte’s constitutional attack on
his ACC sentence, we vacate his sentence and remand this case
for resentencing in light of Newbold.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid in the decisional process.
VACATED AND REMANDED

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