US v. Camden Barlow

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cr-00182-NCT-1. [999722218]. [15-4114]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4114

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CAMDEN TAYLOR BARLOW,
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-00182-NCT-1)

Argued:

October 28, 2015

Decided:

December 21, 2015

Before NIEMEYER and MOTZ, Circuit Judges, and M. Hannah LAUCK,
United States District Judge for the Eastern District of
Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded for resentencing
by published opinion.
Judge Motz wrote the opinion, in which
Judge Niemeyer and Judge Lauck joined.

ARGUED: Kathleen Ann Gleason, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greensboro, North Carolina, for Appellant.
Ripley
Eagles Rand, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee. ON BRIEF: Louis C. Allen, Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greensboro, North Carolina, for Appellant.

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DIANA GRIBBON MOTZ, Circuit Judge:
Camden Barlow pled guilty to one count of possession of a
firearm as a felon and, on the basis of prior state felonies,
received an enhanced fifteen year sentence as an armed career
criminal under 18 U.S.C. §§ 922(g)(1) and 924(e) (2012).
appeals raising two challenges.
not

previously

committed

sentence

as

an

stand.

armed

Second,

he

First, he maintains that he had

three

career
contends

He

violent

criminal
that

felonies
under

none

of

§

and

so

924(e)

his

his

cannot

prior

convictions qualify as felony predicates under § 922(g)(1).

state
For

the reasons that follow, we conclude that Barlow’s prior state
convictions do constitute felony predicates under § 922(g)(1),
but we must vacate his sentence as an armed career criminal and
remand for resentencing.

I.
On

May

27,

2014,

a

grand

jury

indicted

Barlow

for

possession of a firearm after having committed three violent
state felonies, in violation of §§ 922(g)(1) and 924(e).
A year earlier, in April 2013, Barlow had pled guilty in
state court to two counts of felony speeding to elude arrest, in
violation of N.C. Gen. Stat. § 20-141.5(b) (2014).

In July

2013, Barlow pled no contest to two counts of felony breaking
and entering, in violation of N.C. Gen. Stat. § 14-54(a) (2014).
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Barlow received two consecutive sentences of eight to nineteen
months’ imprisonment for his breaking and entering convictions.
For his speeding to elude arrest convictions, the sentencing
court

found

mitigating

facts

and

sentenced

Barlow

consecutive sentences of four to fourteen months.

to

two

Under North

Carolina’s structured sentencing scheme, given Barlow’s criminal
record, the maximum presumptive sentence for each of the four
crimes was nineteen months’ imprisonment.

See N.C. Gen. Stat.

§ 15A-1340.17(c), (d) (2014).
Barlow maintained at sentencing that he had not previously
committed three violent felonies and so should not be sentenced
as

a

career

(“ACCA”).

criminal

under

the

Armed

Career

Criminal

Act

He also asserted that none of his prior state crimes

constituted felonies.

The court permitted Barlow to pose the

second argument notwithstanding his guilty plea, concluding that
if

the

grounds

court
to

accepted

withdraw

the
the

argument,
plea

and

it

would

obtain

provide

dismissal

Barlow
of

the

indictment. 1

1

The Government does not argue that Barlow waived this
argument
by
executing
the
plea
agreement.
While
an
unconditional guilty plea conclusively establishes the elements
of an offense, United States v. Willis, 992 F.2d 489, 490 (4th
Cir. 1993), a defendant may withdraw his plea prior to
sentencing for a fair and just reason, which includes assertion
of a credible claim of legal innocence, United States v. Moore,
931 F.2d 245, 248 (4th Cir. 1991).
3

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The district court carefully considered and rejected both
arguments.
that

First, the court disagreed with Barlow’s contention

that

his

prior

state

convictions

were

not

felonies

for

purposes of § 922(g)(1) because they did not expose him to a
term or imprisonment of more than one year.
imposed the ACCA enhancement.

Second, the court

In doing so, it counted Barlow’s

two convictions for speeding to elude arrest as separate violent
felonies, but consolidated his two convictions of breaking and
entering into a single violent felony after finding that they
arose

out

of
that

indicated

the
a

discharging

a

same

criminal

juvenile

weapon

into

episode.

adjudication
occupied

of

property

The

court

also

delinquency
under

N.C.

for
Gen.

Stat. § 14-34.1 (2014) could qualify as an additional violent
felony for purposes of the ACCA.

As a result, the court found

at least the requisite three violent felonies necessary for the
ACCA enhancement and sentenced Barlow to the mandatory minimum
of 180 months’ imprisonment.

Barlow timely filed this appeal.

II.
The less complex of Barlow’s appellate arguments involves
his

two

North

convictions.

Carolina

felony

speeding

to

elude

arrest

He maintains that these offenses do not constitute

violent felonies under the ACCA.

4

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The ACCA provides for a sentencing enhancement for persons
who violate § 922(g) and have three previous convictions for
violent felonies.

See 18 U.S.C. 924(e).

The North Carolina

crime of speeding to elude arrest does not have an element of
use, attempted use, or threatened use of physical force against
the person of another.

Compare 18 U.S.C. § 924(e)(2)(B)(i),

with N.C. Gen. Stat. § 20-141.5(b).

Nor is it among the listed

violent felonies in the ACCA -- burglary, arson, extortion, or a
crime

involving

the

§ 924(e)(2)(B)(ii).

use

of

explosives.

Therefore,

to

See

constitute

18
a

U.S.C.

crime

of

violence for purposes of the ACCA, the district court must have
found that this offense qualified under the residual “otherwise”
clause,

which

defines

a

violent

felony

as

any

crime

that

“otherwise involves conduct that presents a serious potential
risk of physical injury to another.”
After

Barlow’s

sentencing,

the

Id.
Supreme

Court

issued

its

opinion in Johnson v. United States, 576 U.S. ___, 135 S. Ct.
2551 (2015).

There the Court invalidated the ACCA’s “residual

clause” as unconstitutionally vague.

Id. at 2557, 2563.

The

Government concedes that, in light of Johnson, “Barlow’s two
North Carolina state convictions for Felony Speeding to Elude
Arrest no longer constitute valid ACCA predicates.”
Suppl. Br. at 4.
predicate

Appellee’s

As “Barlow now has at most two valid ACCA

convictions,”

his

“fifteen-year
5

sentence

imposed

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pursuant

to

omitted). 2

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the

ACCA

We agree.

is

no

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longer

valid.”

Id.

(footnote

Accordingly, we must remand this case for

resentencing.

III.
Barlow’s remaining argument poses a more complicated and
more comprehensive

challenge.

He

contends

that

none

of

his

prior North Carolina convictions constitute felonies and thus he
could

not

be

§ 922(g)(1).
requires

a

felon

This

his

is

release

on

in
so,

possession
he

of

maintains,

post-release

a

firearm

because

supervision

under

state
nine

law

months

prior to the expiration of his maximum sentence, and so none of
those convictions exposed him to a term of imprisonment of more
than one year.
The North Carolina Structured Sentencing Act determines the
length of the term of imprisonment Barlow faced.

In United

States v. Simmons, 649 F.3d 237, 240, 249-50 (4th Cir. 2011) (en
banc), we held that the Structured Sentencing Act establishes a
“carefully

crafted

sentencing

scheme”

2

in

which

two

factors

The Government also recognizes that, after Barlow’s
sentencing, this court held that the North Carolina felony of
discharging a firearm into an occupied building is not a “crime
of violence” under U.S.S.G. § 2L1.2 because it “does not require
that an offender use, attempt to use, or threaten to use force
against another person.” United States v. Parral-Dominguez, 794
F.3d 440, 445 (4th Cir. 2015) (emphasis omitted).
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determine the length of felony sentences:
of

offense”

and

the

offender’s

own

the designated “class

criminal

record.

After

ascertaining a defendant’s class of offense and “prior record
level,” a sentencing judge identifies from statutory tables the
minimum and maximum terms of imprisonment.
§ 15A-1340.17(c), (d).

See N.C. Gen. Stat.

Thus, as we held in Simmons, in this way

the Structured Sentencing Act and its statutory tables determine
if a crime is punishable by a term of imprisonment of more than
one year.
After issuance of our August 17, 2011 opinion in Simmons,
the North Carolina legislature enacted the Justice Reinvestment
Act, effective December 1, 2011 and so controlling here.

That

legislation made a number of significant changes to the state’s
structured

sentencing

sentencing

for

confinement

for

Reinvestment

Act

regime,

habitual

including

felons,

and

misdemeanants.
of

2011,

2011

reforms
the

See
N.C.

to

probation,

proper

place

generally

Sess.

Laws

of

Justice

192;

Jamie

Markham, The Justice Reinvestment Act: An Overview, N.C. Crim.
L.

(June

30,

2011),

http://nccriminallaw.sog.unc.edu/the-

justice-reinvestment-act-an-overview/.
Most relevant here, the Justice Reinvestment Act mandates
terms

of

post-release

supervision

for

all

convicted

except those serving sentences of life without parole.
N.C. Sess. Laws 192 § 2.(a), (b).
7

felons

See 2011

Prior to enactment of the

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Reinvestment

Act,

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serious

Class

B1

through

E

felons

serving terms less than imprisonment for life received postrelease

supervision

beginning

nine

months

expiration of their maximum sentences.

See id.

prior

to

the

The new statute

lengthens the term of post-release supervision for those serious
felonies to twelve months and introduces a new nine-month period
of mandatory post-release supervision for all other felonies,
including Barlow’s.

See id.

When mandating these new terms of post-release supervision
in the Justice Reinvestment Act, the legislature also amended
the statutory tables in the Structured Sentencing Act.
§ 2.(e), (f).
lowest

See id.

In accord with the amended statutory tables, the

possible

maximum

term

of

imprisonment

for

a

felony

conviction in North Carolina, regardless of offense class or
prior record level, is thirteen months.
Gen. Stat. § 15A-1340.17(d), (e). 3

See id. § 2.(e); N.C.

Thus, all North Carolina

felonies now qualify as federal predicate felonies; those crimes
that the state labeled as “felonies,” but which previously did
not expose a defendant to a term of imprisonment of more than
one year, have been eliminated.
3

In their altered form, the statutory tables refer only to
a “maximum term of imprisonment.”
N.C. Gen. Stat. § 15A1340.17(d), (e).
They are silent on what proportion of that
term a prisoner will spend in prison or under alternative forms
of state custody, and do not mention post-release supervision at
all. See id.
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For example, given Barlow’s offense class (H) and prior
record level (II), the maximum term of imprisonment he would
have faced on each conviction prior to the new legislation was
ten months.

See N.C. Gen. Stat. § 15A-1340.17(c), (d) (2010).

After the Justice Reinvestment Act, that period increased to
nineteen

months

and

rendered

an

offense

that

would

not

have

qualified as a predicate felony under Simmons as one that does.
See 2011 N.C. Sess. Laws 192 § 2.(e).
Understandably, Barlow resists this conclusion.

He insists

that “post-release supervision is supervision and not a term of
imprisonment.”

Appellant’s Br. at 18 (emphasis in original).

He maintains that his state convictions exposed him to a term of
imprisonment

of

not

more

than

ten

months,

followed

by

nine

months of post-release supervision.
The

North

Carolina

rejected that view.

legislature,

however,

has

expressly

State law defines post-release supervision

as “[t]he time for which a sentenced prisoner is released from
prison before the termination of his maximum prison term.”
Gen. Stat. § 15A-1368(a)(1) (emphasis added).
sentences”

imposed

do

not

terminate

until

The “sentence or
“a

completes the period of post-release supervision.”
1368.2(f).

N.C.

supervisee
Id. § 15A-

State law accordingly places time spent on post-

release supervision within, not outside of or in addition to,
the maximum term of imprisonment.
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course,

the

North

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Carolina

legislature

could

have

followed Barlow’s preferred route by retaining the maximum term
of

imprisonment

and

requiring

a

nine-month

period

release supervision follow that term of imprisonment.
did not do this.

of

postBut it

The deliberateness of the legislature’s choice

not to do so seems crystal clear.

For when it enacted the

Justice Reinvestment Act, a well-established model -- federal
supervised release -- did precisely what Barlow would like the
North Carolina legislature to have done.
Under federal law, a court “may include as a part of [a]
sentence a requirement that [a] defendant be placed on a term of
supervised release after imprisonment.”
(2012) (emphasis added).

18 U.S.C. § 3583(a)

Thus, a federal judge can only impose

supervised release in addition to, and subsequent to, a term of
imprisonment.

See id. 4

Similarly, the United States Sentencing

Guidelines provide that “a term of supervised release does not
replace a portion of the sentence of imprisonment, but rather is
an order of supervision in addition to any term of imprisonment
imposed by the court.”

U.S. Sentencing Guidelines Manual ch.7,

4

Even federal criminal statutes that set mandatory terms of
supervisory release explicitly separate the imprisonment term
from supervised release.
See, e.g., 21 U.S.C. § 841(b)(1)(B)
(2012) (providing that sentences under this subparagraph shall
“include a term of supervised release of at least 4 years in
addition to such term of imprisonment” and doubling the duration
of supervision to 8 years if the defendant has a prior
conviction) (emphasis added).
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pt. A(2)(b) (U.S. Sentencing Comm’n 2015); accord United States
v. Granderson, 511 U.S. 39, 50 (1994) (“Supervised release, in
contrast

to

probation,

incarceration.”).

is

not

a

punishment

in

lieu

of

In short, time spent on federal supervised

release unambiguously does not constitute part of the term of
imprisonment.
The North Carolina legislature did not follow the federal
model.

Accordingly, notwithstanding similarities in terminology

and purpose between post-release supervision in North Carolina
and federal supervised release, the two programs differ in a
very

important

supervision
federal

in

and

distinction.

way:
the

North

only
term

of

Carolina

North

Carolina

law
A

imprisonment.
criminal

includes
comparison

judgments

reflects

the
of

this

A typical federal criminal judgment orders a term

of imprisonment, followed by a term of supervised release, which
is not included in the term of imprisonment.

In contrast, a

North Carolina judgment for even the least serious felony, like
breaking and entering, orders the felon imprisoned for a maximum
term of months, with no mention of post-release supervision.
To

be

sure,

persons

serving

felony

sentences

in

North

Carolina typically do not spend the last nine months (or twelve
months for Class B1 through E felonies) of their sentences in
prison.

But

some

will,

and

the

fact

that

post-release

supervision is part of the term of imprisonment has significant
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consequences for these offenders.

Supervisees who abscond from

supervision or who commit an additional crime while on release
“will be returned to prison up to the time remaining on their
maximum

imposed

terms.”

(emphasis added).

N.C.

Gen.

Stat.

§

15A-1368.3(c)(1)

Once again, the statutory language renders

post-release supervision part of the total term of imprisonment.
This

provision

makes

clear

that

those

on

post-release

supervision are still serving their terms of imprisonment.

And

if a supervisee absconds and is captured, he will serve his
remaining term of imprisonment in prison.
Despite

this,

Barlow

argues

that

this

period

of

reimprisonment is irrelevant under Simmons because it results
from

“some

second,

post-offense

Appellant’s Br. at 18.
statutory

provisions

and

post-imprisonment

act.”

This argument ignores not only the above
but

also

the

fact

that

North

Carolina

courts have expressly held that when a supervisee violates a
condition

of

post-release

supervision

and

returns

to

prison,

that period of imprisonment is part of the original sentence,
not punishment for the supervision infraction.
Sparks,

657

S.E.2d

655,

661

(N.C.

2008)

See State v.

(“[R]evocation

of

defendant’s post-release [supervision] and reinstatement of the
time remaining on his original sentence result from defendant’s
original

felony

triggered

the

convictions
revocation,

and

not

absconding
12

from
from

his
his

conduct

which

post-release

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officer.”); State v. Corkum, 735 S.E.2d 420, 423 (N.C. Ct. App.
2012)

(“There

revocation

is

of

no

new

sentence

post-release

imposed

supervision;

as

a

only

result
the

of

a

remaining

portion of the original sentence is activated.”). 5
The
release

purely

administrative

supervision

in

nature

North

of

Carolina

revocation
echoes

the

of

post-

state’s

treatment of post-release supervision as part of the term of
imprisonment.
Commission
operating
oversees

The
(“the

under
the

infraction.

Post-Release

Commission”),
the

state’s

revocation

of

Supervision
an

Division

post-release

and

Parole

administrative

entity

of

Adult

Correction,

supervision

after

an

N.C. Gen. Stat. §§ 15A-1368(a)(3), (b); 143B-720.

The Commission conducts preliminary revocation hearings in which
a supervisee may appear and speak on his own behalf, but rules
of evidence do not apply.

Id. § 15A-1368.6(d).

5

Barlow also argues that the manner in which state law
accounts for consecutive sentences establishes that post-release
supervision is not part of the term of imprisonment. See N.C.
Gen. Stat. § 15A-1354(b) (providing that a defendant convicted
of consecutive felony sentences receives a combined maximum term
equal to “the total of the maximum terms of the consecutive
sentences . . . less nine months for each of the second and
subsequent sentences imposed”).
The legislative choice to
excuse all but one period of post-release supervision for
convicted
felons
serving
consecutive
sentences
may
seem
anomalous, but surely it is a choice the legislature could make.
That choice does not repeal other state statutes or somehow
demonstrate that, notwithstanding them, post-release supervision
does not constitute part of the term of imprisonment.
It also
does not impact whether each crime individually is punishable by
more than one year’s imprisonment.
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a

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hearing

officer

Pg: 14 of 15

finds

probable

cause

to

believe

a

supervisee violated a condition of post-release supervision, he
may

order

the

imprisonment,”

supervisee
subject

to

to

a

“serve
final

the

appropriate

revocation

term

hearing

to

of
be

conducted “within 45 days of the supervisee’s reconfinement.”
Id. § 15A-1368.6(d), (e).

Thus, a supervisee arrested for a

violation may be re-confined in prison before the administrative
agency

makes

occurred.

a

final

determination

of

whether

a

violation

This occurs without a return to the sentencing court

and may occur without a ruling from a judge.

See id. § 15A-

1368.6(c) (providing that hearing officers need not be judicial
officials).

This, of course, contrasts with federal supervised

release, where the sentencing court maintains jurisdiction over
supervisees

and

resentences

reimprisonment for violations.

defendants

to

terms

of

See 18 U.S.C. § 3583(e)(3).

In sum, the North Carolina legislature clearly intended to
include post-release supervision as part of a felon’s term of
imprisonment.

And

under

Simmons

we

ask

only

what

term

of

imprisonment the defendant was exposed to for his conviction,
not the most likely duration of his imprisonment.
States

v.

Kerr,

737

F.3d

33,

Simmons, 649 F.3d at 248-50.

38

(4th

Cir.

See United

2013);

see

also

In every case, North Carolina law

now exposes felons to terms of imprisonment exceeding one year.
Of

course,

those

felony

sentences
14

include

a

period

of

post-

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release

Filed: 12/21/2015

supervision.

But

Pg: 15 of 15

state

law

renders

supervision part of the term of imprisonment.

post-release

Therefore, each

of Barlow’s convictions, for which he faced a nineteen-month
term of imprisonment, qualifies as a prior felony conviction
under 18 U.S.C. § 922(g)(1).

IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED FOR RESENTENCING.

15