United States v. James SellersUnited States v. James Sellers
guess wrong suffer losses. The purpose of insurance is to disperse that risk. But “[a]n insured cannot insure against something that has already begun and which is known to have begun.”37 The “prior publication” exclusion prevents a continuing tortfeasor from passing the risk for its misconduct on to an unwitting insurer. Taking Navajo Nation‘s underlying allegations as true, Urban Outfitters engaged in similar liability-triggering behavior both before and during Hanover‘s coverage period. We therefore hold that the exclusion applies.
For the foregoing reasons, we will affirm the District Court‘s order granting Hanover‘s motion for judgment on the pleadings.
Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge SHEDD wrote the opinion, in which Judge NIEMEYER and Judge KEENAN joined.
SHEDD, Circuit Judge:
A federal jury convicted James Morris Sellers of unlawfully possessing a firearm, in violation of
On appeal, Sellers contends that his prior drug convictions do not qualify him as an armed career criminal because the state court sentenced him pursuant to South Carolina‘s Youthful Offender Act (“YOA“),
We reaffirm our holding in Williams. Simmons and its progeny reinforce Williams’ directive that courts evaluating whether a prior conviction qualifies as a predicate for a federal sentence enhancement look to the statutory penalty for the prior conviction, not the sentence the defendant received. As we explained in Williams, YOA offenses can qualify as ACCA predicates because the maximum statutory penalty for the prior conviction is unaffected by the state court‘s exercise of its discretion to impose a sentence of six years or less in custody. We therefore affirm the district court‘s judgment.
I.
In February 1999, Sellers pled guilty in state court to three indictments charging him with possession with intent to distribute crack cocaine, in violation of
In March 2014, a federal jury found Sellers guilty of unlawfully possessing a firearm, in violation of
Sellers objected to the PSR, asserting that the three prior drug convictions were not punishable by a maximum term of imprisonment of ten years or more because the YOA imposed a maximum penalty of six years in custody. Sellers recognized that we rejected this contention in Williams, but he argued that Williams was abrogated by our decision in Simmons. The district court overruled Sellers’ objection and sentenced him as an armed career criminal to a term of 210 months of imprisonment and five years of supervised release.
II.
Sellers reiterates his objection on appeal, arguing, as he did below, that his three prior drug convictions do not trigger the ACCA‘s sentence enhancement. In Sellers’ view, because the sentencing judge failed to find that he would not derive benefit from treatment, the YOA capped his sentence at six years.
In considering a district court‘s determination that a defendant qualifies for an enhanced sentence under the ACCA, we review its factual findings for clear error and its legal conclusions de novo. United States v. Wardrick, 350 F.3d 446, 451 (4th Cir.2003).
A.
In state court, Sellers had been charged with and pled guilty to three counts of possession with intent to distribute crack cocaine, in violation of
In Williams, the defendant argued that his prior South Carolina conviction for possession with intent to distribute crack cocaine did not qualify as an ACCA predicate despite the statutory maximum penalty of 15 years in prison because he was sentenced to an indeterminate period of confinement not to exceed six years pursuant to the YOA. He asserted that once a state court “uses the YOA to designate an offender as one who cannot receive a sentence in excess of six years, the offense of conviction no longer carries a possible term of imprisonment of ten years or more and therefore does not qualify as a ‘serious drug offense.‘” Williams, 508 F.3d at 727. We squarely rejected this characterization of sentencing under the YOA, reasoning that “the language of the YOA is permissive, not mandatory.” Id. (emphasis added).
We further rejected the contention that we “should look to the sentence actually imposed, rather than the range of penalties to which [the defendant] was potentially subject,” to determine whether a prior conviction qualifies as an ACCA predicate. Id. at 728. Because the plain language of the ACCA “directs courts to consider the statutory penalty for the prior conviction, not the sentence the defendant in fact received,” we held that a prior conviction “qualifies as a ‘serious drug offense’ if the statute of conviction permits the imposition of a sentence of ten years or more.” Id. (emphasis in original). We concluded that Williams’ prior drug conviction was one for which a maximum term of imprisonment of ten years or more was prescribed by law, despite the fact that the state court exercised its discretion to sentence him to a lesser term. Id. at 730. Sellers now asserts that this holding has been abrogated by our decision in Simmons.
B.
In Simmons, we considered whether a prior North Carolina conviction was punishable by more than one year in prison under “the unique statutory regime mandated by the North Carolina Structured Sentencing Act.”2 649 F.3d at 239-40 (emphasis added). Under the Structured Sentencing Act, sentences are contingent on two factors established by statute: the class of offense and the offender‘s prior record level.
Before Simmons, we determined whether a prior North Carolina conviction was punishable by a prison term exceeding one year by looking to “the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.” United States v. Harp, 406 F.3d 242, 246 (4th Cir.2005) (second emphasis added), overruled by Simmons, 649 F.3d 237. However, the Supreme Court‘s decision in Carachuri-Rosendo v. Holder, 560 U.S. 563, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010), caused us to reconsider this use of a hypothetical worst-case offender.
In Carachuri, the Court examined a provision of the Immigration and Nationality Act (“INA“) that allows an alien who “has not been convicted of any aggravated felony” to seek cancellation of removal. Id. at 566-67;
Applying this rationale in Simmons, we abandoned our use of a hypothetical defendant with the worst possible criminal history and held instead that a prior North Carolina conviction is punishable by a prison term exceeding one year only if the particular defendant‘s offense of conviction was punishable by a prison term exceeding one year.
C.
Here, Sellers contends that in the wake of Simmons, our analysis of whether his
Sellers’ argument is incorrect for two important reasons. First, Sellers fails to appreciate the key distinction between the Structured Sentencing Act and the YOA: the Structured Sentencing Act is a legislative mandate that strictly prohibits the sentencing judge from imposing a sentence that exceeds the maximum fixed by the statutory chart, while the YOA is a discretionary alternative that provides the sentencing judge with the authority to impose an increased sentence. Second, Sellers looks to the sentence that was actually imposed, rather than the sentence he faced; we have repeatedly rejected this approach, even after Simmons. See, e.g., United States v. Kerr, 737 F.3d 33, 38 (4th Cir.2013), cert. denied, --- U.S. ----, 134 S.Ct. 1773, 188 L.Ed.2d 603 (2014). Simmons and its progeny foreclose Sellers’ contention that his sentences under the YOA do not qualify as ACCA predicates.
1.
In Kerr, for example, the defendant argued that his prior North Carolina convictions did not qualify as predicate felonies for a federal sentence enhancement because the sentencing judge exercised her discretion to impose a sentence in the Structured Sentencing Act‘s mitigated range, which provided a maximum possible sentence of 11 months in prison, as opposed to the presumptive range, which provided a term of 9-14 months in prison. Id. at 36. We rejected the argument that the mitigated range‘s 11-month cap meant that Kerr‘s prior conviction was not punishable by more than one year in prison and held instead that the presumptive range determined his maximum term of imprisonment. Although the sentencing judge determined that mitigating factors warranted a sentence within the mitigated range, “the maximum possible prison that Kerr faced for his prior state convictions” was determinative because “the judge remained free at all times to sentence Kerr to a presumptive prison term of up to 14 months.” Id. at 38-39 (second emphasis added).
Similarly, in Valdovinos, the defendant asserted that his prior North Carolina conviction did not qualify as a predicate felony because he was sentenced pursuant to a plea agreement that provided for a maximum sentence of 12 months of imprisonment. 760 F.3d at 324-25. Despite the language of the plea agreement, we held that the prior conviction was punishable by a prison term exceeding one year because the Structured Sentencing Act authorized a maximum sentence of 16 months of imprisonment for the conviction. We emphasized “[t]hat the sentence ultimately imposed pursuant to [Valdovinos‘] plea deal was 10 to 12 months’ imprisonment [was] irrelevant,” because whether a prior conviction qualifies as a sentencing predicate
Finally, in United States v. Bercian-Flores, 786 F.3d 309, 310 (4th Cir.2015), the defendant argued that a prior federal conviction with a statutory maximum sentence of five years in prison did not qualify as a predicate felony because the mandatory Sentencing Guidelines range in effect at the time of his sentencing was zero to six months of imprisonment. Much like Sellers, Bercian-Flores analogized to the North Carolina Structured Sentencing Act, asserting that just as the sentencing judge in Simmons failed to find the existence of aggravating factors and thus could not impose a sentence in the aggravated range, his sentencing judge failed to find facts that warranted an upward departure and therefore could not impose a sentence outside of the Guidelines range. We rejected Bercian-Flores’ argument and held that the statutory maximum sentence set by the applicable legislative body—not the top sentence in a guidelines range—is determinative of whether a prior conviction constitutes a predicate felony. As we explained, ”Simmons did not change the fact that the cornerstone of our predicate-felony analysis must be the defendant‘s offense of conviction. The qualification of a prior conviction as a sentencing predicate does not depend on the sentence a defendant actually received but on the maximum sentence permitted for his offense of conviction.” Id. at 315-16 (internal alterations, citations, and quotation marks omitted). Our conclusion hinged on the fact that even under the mandatory Sentencing Guidelines in effect at the time Bercian-Flores was sentenced for his prior conviction, “the district court had discretion to sentence Bercian-Flores up to the statutory maximum of five years” in prison. Id. at 315 (emphasis added).
2.
These cases set forth two important and interrelated principles that govern our analysis of whether a prior conviction qualifies as a predicate for a federal sentence enhancement after Simmons. The first is that “the cornerstone of our predicate-felony analysis” is the maximum sentence permitted by the defendant‘s offense of conviction, not the sentence the defendant actually received. Id. at 315-16 (citing Valdovinos, 760 F.3d at 327). The second is that “the salient question to be asked after Simmons is whether the sentencing judge could sentence a particular defendant” to a qualifying term of imprisonment. Id. at 315 (emphasis in original) (citing Valdovinos, 760 F.3d 322; Kerr, 737 F.3d 33).
The application of these principles requires us to reject Sellers’ argument and reaffirm our holding in Williams. First, Simmons and its progeny reinforce, rather than reject, Williams’ directive that we “consider the statutory penalty for the prior conviction, not the sentence the defendant in fact received.” Williams, 508 F.3d at 728 (emphasis in original). In addition, we conclude that the sentencing judge could have sentenced Sellers to
Consistent with Williams, we therefore hold that a prior South Carolina conviction for which a defendant received a YOA sentence of an indefinite period of confinement not to exceed six years qualifies as a predicate for a federal sentence enhancement where the statute of conviction prescribes a qualifying term of imprisonment. Accordingly, Sellers’ three South Carolina convictions for violations of
III.
For the foregoing reasons, we hold that Sellers’ three prior South Carolina drug convictions qualify as ACCA predicates.
The district court therefore did not err in sentencing Sellers as an armed career criminal, and the judgment of the district court is affirmed.
AFFIRMED
SHEDD
UNITED STATES CIRCUIT JUDGE