United States v. McNeill and How to Count Prior Convictions

The Supreme Court of the United States recently granted certiorari in a case originating out of North Carolina. United States v. McNeill, 598 F.3d 161 (4th Cir. 2010), cert. granted, 2011 WL 48124 (U.S., Jan. 7, 2011). The defendant in the case, Clifton McNeill, pled guilty to gun and drug crimes in federal court. The district court then sentenced him under the Armed Career Criminal Act (ACCA), a federal sentencing enhancement for offenders with three previous convictions for a “violent felony or a serious drug offense.” 18 U.S.C. § 924. A serious drug offense under the ACCA is “an offense under State law  . . . 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).

The serious drug offenses on Mr. McNeill’s record were North Carolina convictions from the early 1990s. At the time they were committed those crimes were punishable under the Fair Sentencing Act by a maximum sentence of 10 years, which would make them serious drug offenses under the ACCA. Today, however, the same crimes are punishable by a maximum of only 30 months under Structured Sentencing—well short of the ACCA’s requisite maximum. McNeill argued that the present-tense language of the serious drug offense definition (“is prescribed by law”) means the maximum currently applicable to the prior crime should control when deciding whether a crime is a serious drug offense. The district court disagreed and gave an enhanced ACCA sentence.

The Fourth Circuit affirmed, but only after adding an additional wrinkle to the analysis. The panel found it significant that when North Carolina transitioned from Fair Sentencing to Structured Sentencing in 1994, the change only applied to offenses committed on or after October 1, 1994. So, even if McNeill’s prior drug convictions from 1991, 1992, and September 1994 were tried and convicted today, they would be sentenced under Fair Sentencing. With that in mind the court concluded those particular prior offenses are still punishable by up to 10 years and should count under the ACCA.

There’s a circuit split on this issue. The Second and Sixth Circuits have held that the relevant maximum term for a previous offense should be determined according to the law in place at the time of the current federal proceeding. United States v. Darden, 539 F.3d 116 (2d Cir. 2008); United States v. Morton, 17 F.3d 911 (6th Cir. 1994). The Fifth Circuit, on the other hand, reads the law like the Fourth: if a revised sentencing scheme doesn’t apply to crimes committed before the effective date of the revision, the law applicable at the time of the previous offense should be used to determine whether that conviction counts under the ACCA. United States v. Hinojosa, 349 F.3d 200 (5th Cir. 2003). Presumably the Court’s eventual decision in McNeill will resolve the split.

I write about this case mostly as a matter of general interest—it’s not every day that the Justices agree to review a case that started with a routine traffic stop in Fayetteville—but it’s also an opportunity to mention how a few similar issues are handled under state law.

Prior Record Level: When determining how many points to assign to a prior offense for prior record level–calculation purposes, use the classification assigned to the prior offense as of the offense date of the crime for which the offender is currently being sentenced. G.S. 15A-1340.14(c).

Violent habitual felon: Generally, Class A through E felonies are “violent felonies” for the purposes of North Carolina’s violent habitual felon law. G.S. 14-7.7(b)(1). The definition of a violent felony also includes “[a]ny repealed or superseded offense substantially equivalent to [a Class A through E felony].” G.S. 14-7.7(b)(2). The court of appeals has read subdivision (b)(2) to mean a prior conviction counts if is for a crime that is a Class A through E felony at the time of the current violent habitual felon proceeding, even it was a less serious offense when committed. State v. Wolfe, 157 N.C. App. 22 (2003) (holding that a prior conviction for voluntary manslaughter, a Class F felony when committed in 1987 but upgraded to Class D in 1997, counted as a violent felony for the purposes of a 1999 violent habitual felon proceeding).

Habitual felon: North Carolina’s habitual felon law says a person is a habitual felon when he or she has prior convictions for three felony offenses, defined as “an offense which is a felony under the laws of the State or other sovereign.” G.S. 14-7.1. The statute doesn’t say whether a prior conviction counts as a felony if it was a felony when committed but has since been downgraded to a misdemeanor, or was a misdemeanor when committed but is now a felony. There are no appellate cases answering the question either. Similar to the defendant in McNeill, one might argue that the use of the present-tense “is a felony” language in G.S. 14-7.1 suggests the classification as of the time of the current habitual felon proceeding should control. On the other hand, the absence of language like that found in the prior record level and violent habitual felon statutes, mandating that a prior conviction be judged by its current classification, perhaps means the classification as of the time of the prior conviction itself should control. Jeff leans toward the latter reading in the bulletin available here.