Barlow Strikes Back

After Justice Reinvestment, all North Carolina felonies are predicate felonies for certain federal purposes. That was the Fourth Circuit’s recent conclusion in United States v. Barlow. The decision significantly rolls back the court’s 2011 ruling in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), which held that many low-level North Carolina offenses were not felonies under federal law.

Forgive the Star Wars references in this post’s title and below—I know this is serious business for defendants and victims, and not something to be taken lightly. But the recent history of how prior North Carolina felonies count for various federal purposes has an ebb and flow that called the series to mind. Here is a short history of the issue.

Prequels. Under various federal laws, prior state convictions for a felony can trigger certain additional criminal consequences. How those qualifying prior offenses are defined varies from law to law, but the focus generally is on the maximum punishment for the offense. For example, the federal Controlled Substances Act allows for a sentence enhancement for defendants with a prior drug offense “punishable by imprisonment for more than one year.” 21 U.S.C. § 804(44). Similarly, the federal firearm prohibition applies to persons with a prior conviction for a “crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g). The same language appears in the armed career criminal sentence enhancement. 18 U.S.C. § 924(e).

Before 2011, whether a federal defendant had a qualifying prior conviction under the laws mentioned above was, in the Fourth Circuit, determined under the framework set out in United States v. Harp, 406 F.3d 242 (4th Cir. 2005). Under Harp, a prior offense was “punishable” by imprisonment for more than one year if the hypothetical worst-case defendant could have received a maximum sentence over 12 months. Following that approach, under the North Carolina felony sentencing grid as it existed back then, all North Carolina felonies would qualify as federal felonies: the maximum sentence for even a Class I felony was 15 months if you used the aggravated range and assumed the defendant to be Prior Record Level VI.

A new hope? After bouncing back and forth between an appellate panel and the Supreme Court, the Fourth Circuit held en banc in United States v. Simmons that the Harp rule could not survive intervening case law from the Supreme Court (Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and United States v. Rodriquez, 553 U.S. 377 (2008), in particular). Instead of looking at how the hypothetical worst-case defendant could have been sentenced, the proper way to evaluate the seriousness of a defendant’s prior offenses is to consider the punishment that the particular defendant could have received for the crime, based on his or her actual prior record level and whether or not aggravating factors had been alleged.

With that rule in place, Jason Simmons’ prior North Carolina Class I felony conviction did not trigger the federal sentence enhancement under the Controlled Substances Act. Because he was Prior Record Level I and no aggravating factors were alleged, the maximum punishment for his offense was—under the grid as it existed back then—a mere 8 months. Under that new approach, many prior North Carolina “felonies” (almost all Class I felonies and many Class H felonies) of many federal defendants ceased to be felonies for federal purposes.

Episode V.  A few months after Simmons was decided, the Justice Reinvestment Act (JRA) came into effect. Among other things, the law changed the way low level felony sentences are served. For offenses committed on or after December 1, 2011, all felons receive nine months of post-release supervision. And to accommodate that post-release supervision, all felony maximum sentences were inflated by 9 months (see this video post for an explanation of how post-release supervision works). Under the post-12/1/2011 grid, the shortest possible maximum sentence for any felony—regardless of prior record level—is 13 months.

That brings us to United States v. Barlow. In Barlow, the defendant pled guilty in federal court to possession of a firearm as a felon. His status as a felon was based on his prior North Carolina Class H felony convictions. On appeal, he argued that those felonies were not felonies for federal purposes in light of Simmons.

The Fourth Circuit disagreed. That would have been true before Justice Reinvestment, the court noted. As a Prior Record Level II defendant with no aggravating factors alleged, the longest permissible maximum sentence for Barlow’s Class H felonies would have been 10 months—if they would have been committed before December 1, 2011. But they weren’t. They were committed in 2012, and thus subject to the inflated maximum sentences set out in the post-JRA grid. After Justice Reinvestment, the highest permissible maximum for him was 19 months—well in excess of a year.

Barlow argued that the “extra” nine months built into his maximum sentence were not for “imprisonment,” but were rather focused on “supervision.” Moreover, any further imprisonment that might follow a revocation of PRS would be based on “some second, post-offense and post-imprisonment act.” Slip op. at 12. The Fourth Circuited rejected his arguments. Under North Carolina’s approach to post-release supervision (which is distinctively different from federal supervised release) the extra time built into the maximum is in place from the outset, ready to be activated in response to a violation. Not all defendants will serve it (those who succeed on PRS will not), but it’s there—and it thus counts when determining by how many months an offense is punishable. That being the case, “North Carolina law now exposes felons to terms of imprisonment exceeding one year.” Id. at 14. (To be clear, I understand the court to be talking about prior felonies committed on or after December 1, 2011. Many older priors still are not federal felonies under Simmons.)

I have been asked over the years whether the JRA’s maximum sentence inflation was an intentional effort by the General Assembly to legislatively overturn Simmons. I don’t recall any discussion of the issue. And more importantly, the timing doesn’t work out. Though it says in Barlow that the legislature enacted the JRA “after issuance of our August 17, 2011 opinion in Simmons,” in fact the legislature was done with the bill on June 16, 2011, and the governor signed it into law on June 23, 2011. The eventual Barlow effect was, I think, an unintended consequence.

Barlow may not be the last chapter in the saga. There are additional issues to be resolved with respect to immigration law, for example. So stay tuned. Of course, if we get all the way to Episode VII, my nerdy prediction is that it will be exactly like Episode IV.

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