UNITED STATES of America, Plaintiff-Appellee, v. Camden Taylor BARLOW, Defendant-Appellant.
No. 15-4114.
United States Court of Appeals, Fourth Circuit.
Decided: Dec. 21, 2015.
Argued: Oct. 28, 2015.
if the definition of “base station” did not include support structures. Order ¶¶ 169, 180.
Petitioners next argue that the FCC‘s definition is overly broad. They claim that by essentially defining a base station as any structure with an antenna on top, the FCC‘s definition of “base station” also encompasses towers. Given that Section 6409(a) mentions both towers and base stations, Petitioners argue that the FCC‘s interpretation of the statute renders the term “tower” superfluous. The FCC counters that its definition of “tower” includes towers that do not currently support antennas, and that its definition of base stations expressly excludes towers, thereby rendering the two definitions distinct. Respondent‘s Br. at 48. We agree with the FCC‘s explanation in the Order of the distinction between these terms:
[W]e interpret “base station” not to include wireless deployments on towers. Further, we interpret “tower” to include all structures built for the sole or primary purpose of supporting Commission-licensed or authorized antennas, and their associated facilities, regardless of whether they currently support base station equipment at the time the application is filed. Thus, “tower” denotes a structure that is covered under Section 6409(a) by virtue of its construction. In contrast, a “base station” includes a structure that is not a wireless tower only where it already supports or houses such equipment.
Id. ¶ 169. Given these definitions, it is difficult to conceive of a structure that could qualify as both a tower and a base station. The FCC‘s Order clearly provides distinct definitions for the terms of Section 6409(a), and we find unpersuasive Petitioners’ arguments to the contrary.
We emphasize that the FCC‘s interpretation оf “base station” is entitled to deference under step two of Chevron. It is not enough for Petitioners to argue that a better definition of “base station” would have excluded support structures. Instead, Petitioners have the burden of showing that the FCC‘s definition is an unreasonable interpretation of the Spectrum Act. We conclude that Petitioners have failed to carry their burden.
III.
For the foregoing reasons, the petition for review is
DENIED.
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.
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.
DIANA GRIBBON MOTZ, Circuit Judge:
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
Barlow maintained at sentencing that he had not previously committed three violent felonies and so should not be sentenced as a career criminal under the Armed Career Criminal Act (“ACCA“). 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 court accepted the argument, it would provide Barlow grounds to withdraw the plea and obtain dismissal of the indictment.1
The district court carefully considered and rejected both arguments. First, the court disagreed with Barlow‘s contention that that his prior state convictions were not felonies for purposes of
II.
The less complex of Barlow‘s appellate arguments involves his two North Carolina felony speeding to elude arrest convictions. He maintаins that these offenses do not constitute violent felonies under the ACCA.
The ACCA provides for a sentencing enhancement for persons who violate
After Barlow‘s sentencing, the Supreme Court issued its opinion in Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (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.” Appellee‘s Suppl. Br. at 4. As “Barlow now has at most two valid ACCA predicate convictions,” his “fifteen-year sentence imрosed pursuant to the ACCA is no longer valid.” Id. (footnote omitted).2 We agree. 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 a felon in possession of a firearm under
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” in which two factors determine the length of felony sentences: the designated “class of offense” and the offender‘s own criminal record. After ascertaining a defendant‘s
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 regime, including reforms to probation, sentencing for habitual felons, and the proper place of confinement for misdemeanants. See generally Justicе Reinvestment Act of 2011, 2011 N.C. Sess. Laws 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 felons except those serving sentences of life without parole. See 2011 N.C. Sess. Laws 192 § 2.(a), (b). Prior to enactment of the Justice Reinvestment Act, serious Class B1 through E felons serving terms less than imprisonment for life received post-release supervision beginning nine months prior to the expiration of their maximum sentences. See id. 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. Sеe 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. See id. § 2.(e), (f). In accord with the amended statutory tables, the lowest possible maximum term of imprisonment for a felony conviction in North Carolina, regardless of offense class or prior record level, is thirteen months. See id. § 2.(e);
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
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.
Of course, the North Carolina legislature could have followed Barlow‘s preferred route by retaining the maximum term of imprisonment and requiring a nine-month period of рost-release supervision follow that term of imprisonment. But it did not do this. 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 [а] sentence a requirement that [a] defendant be placed on a term of supervised release after imprisonment.”
The North Carolina legislaturе 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 way: only North Carolina law includes the supervision in the term of imprisonment. A comparison of federal and North Carolina criminal judgments reflects this distinction. A typical federal criminal judgment оrders 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 consequences for these offenders.
Despite this, Barlow argues that this period of reimprisonment is irrelevant under Simmons because it results from “some second, рost-offense and post-imprisonment act.” Appellant‘s Br. at 18. This argument ignores not only the above statutory provisions 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. See State v. Sparks, 362 N.C. 181, 657 S.E.2d 655, 661 (2008) (“[R]evocation of defendant‘s post-release [supervision] and reinstatement of the time remaining on his original sentence result from defendant‘s original felony convictions and not from his conduct which triggered the revocation, absconding from his post-release officer.“); State v. Corkum, 224 N.C. App. 129, 735 S.E.2d 420, 423 (2012) (“There is no new sentence imposed as a result of a revocation of post-release supervision; only the remaining portion of thе original sentence is activated.“).5
The purely administrative nature of revocation of post-release supervision in North Carolina echoes the state‘s treatment of post-release supervision as part of the term of imprisonment. The Post-Release Supervision and Parole Commission (“the Commission“), an administrative entity operating under the state‘s Division of Adult Correction, oversees the revocation of post-release supervision after an infraction.
If a hearing officer finds probable cause to believe a supervisee violated a condition of post-release supervision, he may order the superviseе to “serve the appropriate term of imprisonment,” subject to a final revocation hearing to be conducted “within 45 days of the supervisee‘s reconfinement.”
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 imрrisonment the defendant was exposed to for his conviction, not the most likely duration of his imprisonment. See United States v. Kerr, 737 F.3d 33, 38 (4th Cir. 2013); see also Simmons, 649 F.3d at 248-50. In every case, North Carolina law now exposes felons to terms of imprisonment exceeding one year. Of course, those felony sentences include a period of post-release supervision. But state law renders post-release supervision part of the term of imprisonment. Therefore, each of Barlow‘s convictions, for which he faced a nineteen-month term of imprisonment, qualifies as a prior felony conviction under
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR RESENTENCING.