PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4768


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JOSE RAMON SOLIS VALDOVINOS, a/k/a Angel Victorio Mendoza,
a/k/a Jose Valdavinos,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
Chief District Judge. (3:13-cr-00183-FDW-1)


Argued:   May 15, 2014                    Decided:   July 25, 2014


Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Affirmed by published opinion.    Judge Motz wrote the majority
opinion, in which Judge Diaz joined. Senior Judge Davis wrote a
dissenting opinion.


ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.    Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Henderson Hill,
Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Anne M.
Tompkins, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:

      Jose     Valdovinos,          a    citizen     of       Mexico,       pled    guilty     to

unlawfully entering the United States after being deported, in

violation of 8 U.S.C. § 1326(a).                     The district court increased

Valdovinos’s sentence on the ground that he illegally reentered

the country after a prior North Carolina conviction for felony

drug trafficking, i.e., a drug offense punishable by more than

one year in prison.            See U.S.S.G. § 2L1.2(b)(1)(B).                       Valdovinos

challenges     his    sentence          enhancement,        arguing         that    this    prior

conviction was not punishable by more than a year in prison

because   he    was     sentenced            pursuant    to    a     plea    agreement       that

capped his prison term at 12 months.                      Accordingly, he contends,

the   prior     North       Carolina         conviction        was    not     a    felony     for

Guidelines purposes.           For the reasons that follow, we affirm.



                                                I.

      Valdovinos entered the United States in November 2008 and

quickly   ran       afoul     of    the       law.      Authorities          in     Mecklenburg

County, North Carolina arrested him the following month on drug

trafficking charges.               Valdovinos pled guilty in state court to

four counts of selling heroin, each a Class G felony offense

under North Carolina law.                See N.C. Gen. Stat. § 90-95(a) & (b).

Because   Valdovinos          had       no    criminal    record,       his        prior-record

level   was    I.       The    state         court   made      no    findings        of    either

                                                2
aggravation or mitigation.               Based on these facts, the parties

agree    that   Valdovinos’s       prior          conviction     carried    a    maximum

statutory    sentence    of   16       months      in   prison   pursuant       to    North

Carolina’s Structured Sentencing Act (“the Act”).                     See N.C. Gen.

Stat.    § 15A-1340.17(c)          &     (d)        (codifying      North       Carolina

sentencing scheme) (version effective until November 2009). 1

     But Valdovinos was sentenced pursuant to a plea agreement

that,    upon   acceptance    by        the       court,    established     a    binding

sentencing range of 10 to 12 months’ imprisonment.                         Under state

law, once the trial judge accepted the plea, the judge had to

sentence    Valdovinos   within         the       agreement’s    recommended         range.

See N.C. Gen. Stat. § 15A-1023(b) (codifying role of sentencing

judge in plea arrangements relating to sentence).                           Of course,

the judge remained free to reject the recommended range along

with Valdovinos’s guilty plea.                    See 

this case the

judge elected to accept the agreement and accordingly sentenced

Valdovinos to 10 to 12 months in prison.                    In January 2010, after

serving his sentence, Valdovinos was removed to Mexico.



     1
       In December 2011, the North Carolina legislature amended
the Act to provide for higher maximum terms of imprisonment.
See N.C. Gen. Stat. § 15A-1340.17(d). The maximum sentence for
an offender in Valdovinos’s position (Class G felony, prior
record level of I, and no findings of mitigation or aggravation)
is now 25 months’ imprisonment. Valdovinos was convicted before
the amendment, however, so the previous maximum penalty of 16
months applies here.


                                              3
     In May 2013, Valdovinos reentered the United States without

permission and returned to North Carolina.                  He was arrested a

few weeks later for resisting a public officer, and charged with

illegal reentry by a removed alien in violation of 8 U.S.C.

§ 1326(a).     He pled guilty to the charge.

     In   preparation     for     Valdovinos’s      sentencing,      a       probation

officer prepared a presentence report calculating Valdovinos’s

recommended term of imprisonment for this reentry conviction.

The probation officer recommended a base offense level of 8 and

a   12-point    enhancement       on   the    ground   that    Valdovinos         had

previously      been   convicted       of     a   “felony    drug    trafficking

offense,” i.e., his 2009 North Carolina conviction for selling

heroin.        See   U.S.S.G.     § 2L1.2(b)(1)(B).          After       a    3-point

reduction for acceptance of responsibility, Valdovinos’s total

recommended     offense   level    was      17.   Combined    with       a   criminal

history category of II, this offense level produced a Guidelines

range of 27 to 33 months’ imprisonment.

     Valdovinos objected to the felony drug-offense enhancement.

He noted that under the Guidelines, a “felony” is “any federal,

state, or local offense punishable by imprisonment for a term

exceeding one year.”        U.S.S.G. § 2L1.2 cmt. n.2.                   Valdovinos

argued that because his guilty plea to the prior North Carolina

conviction was entered as part of an agreement that capped his

sentence at 12 months once the court accepted his plea, that

                                         4
conviction was not punishable by more than one year in prison.

Consequently, he maintained, his prior conviction for selling

heroin did not constitute a felony under the Guidelines and so

could not serve as a predicate offense to enhance his federal

sentence for illegal reentry.

       The district court rejected the argument.                                   It recognized

that     the    plea       agreement          reduced          Valdovinos’s          prior    North

Carolina sentence.              The court found, however, that this did not

alter the fact that the offense was punishable by imprisonment

exceeding one year because the maximum statutory penalty of 16

months    remained         unchanged.           The         court       therefore    applied       the

enhancement and sentenced Valdovinos to 27 months in prison.

This appeal followed.



                                                II.

       Valdovinos         contends       that          the     district       court       erred     in

enhancing      his        sentence       on     the          basis      of   his     prior       state

conviction.          As    he     argued      in       the    district       court,      Valdovinos

again claims that, due to his plea agreement, his North Carolina

conviction was not punishable by more than a year in prison and

therefore       does        not       qualify          as      a     felony       under      Section

2L1.2(b)(1)(B)         of       the    Guidelines.                 We    review     de    novo    the

question       whether       a        prior    state           conviction          constitutes       a

predicate felony conviction for purposes of a federal sentence

                                                   5
enhancement.        United States v. Jones, 

, 482 (4th

Cir. 2012).

                                          A.

       Our approach to determining whether a prior North Carolina

conviction was punishable by a prison term exceeding one year

(and    thus   constitutes       a     federal     sentencing        predicate)      has

changed in recent years.               We once answered that question by

considering     “the    maximum      aggravated       sentence       that    could   be

imposed for that crime upon a defendant with the worst possible

criminal history.”           United States v. Harp, 

, 246

(4th Cir. 2005).            As a result, many defendants who, based on

their   own    criminal      histories,       could    not    possibly      have   been

sentenced to prison for more than a year were deemed to have

been    convicted      of    predicate     felonies      and    so    sentenced      to

enhanced    federal     prison    terms.         We   faithfully      followed     that

precedent in numerous cases, including United States v. Simmons,

340 F. App’x 141 (4th Cir. 2009).

       In   2010,   however,     the     Supreme      Court    decided      Carachuri-

Rosendo v. Holder, 

(2010).                        The Court held in

Carachuri that, for purposes of the Immigration and Nationality

Act, a prior conviction constitutes an “aggravated felony” –-

i.e., a crime for which the maximum term of imprisonment exceeds

one year –- only if the defendant was “actually convicted of a

crime that is itself punishable as a felony under federal law.”

                                          6


         The Court explained that whether the defendant’s

conduct      underlying     his    prior    conviction          hypothetically        could

have received felony treatment is irrelevant.                          See 

81.    The critical question is simply whether he was convicted of

an offense punishable by more than one year in prison.

       The Supreme Court then vacated our judgment in Simmons and

remanded the case to us for “further consideration in light of

Carachuri-Rosendo.”         See 

(2010).                  On remand, we

recognized     that,     although     Carachuri         arose    in    the    immigration

context, its rationale undercut our use of “an imagined worst-

case    offender”      to   calculate      a     defendant’s          maximum    term    of

imprisonment for a prior conviction.                    United States v. Simmons,

, 249 (4th Cir. 2011) (en banc).                           Accordingly, we

held    that   a     defendant’s    prior       North    Carolina       conviction      was

punishable      by    imprisonment     exceeding          one    year     (and    thus    a

federal sentencing predicate) only if the particular defendant’s

crime of conviction was punishable under North Carolina law by a

prison term exceeding one year.              

that Carachuri and Simmons support his

argument that his prior conviction for selling heroin does not

constitute a felony under the Guidelines.                         In particular, he

seizes on the instruction in those cases that a court must “look

to     the   conviction      itself     as       [its]     starting          place”   when

considering whether a prior conviction qualifies as a federal

                                            7
sentencing      predicate.          

;      accord

.              Valdovinos argues that because the

state court could not have imposed a sentence greater than 12

months   once     it    accepted     his    guilty         plea    –-        that    is,       once

Valdovinos was convicted of his drug offense –- this conviction

was   not     punishable       by     imprisonment              exceeding           one    year.

Appellant’s Br. at 12-13.             Accordingly, Valdovinos claims that

his   prior    North     Carolina     conviction           is     not    a     felony      under

Carachuri and Simmons because “[t]here was no point when [his]

conviction exposed him to a sentence greater than one year’s

imprisonment.”         Reply Br. at 8.

      Valdovinos’s argument is clever, but unpersuasive.                                   North

Carolina’s      unique     sentencing      regime,          not    a     plea       agreement,

determines     whether     a   defendant’s          conviction          is    punishable         by

imprisonment exceeding one year and so qualifies as a federal

sentencing predicate.          

.

                                           B.

      North Carolina’s Structured Sentencing Act “creates felony

sentences     strictly     contingent      on       two    factors:          the    designated

‘class of offense’ and the offender’s ‘prior record level.’”

Gen. Stat. § 15A-1340.13(b)).                               The sentencing

judge calculates the offender’s prior record level by adding

together    the   points,      assigned        by    the    Act,        for    each       of   the

offender’s prior convictions.              N.C. Gen. Stat. § 15A-1340.14(a).

                                           8
The judge then matches the offense class and prior record level

using a statutory table, which provides three sentencing ranges

–- a mitigated range, a presumptive range, and an aggravated

range.        

          The    judge    must    sentence    the

defendant within the presumptive range unless the judge makes

written       findings      of    aggravating    or    mitigating       factors.     

& 15A-1340.16(c).                    And the judge may sentence

a   defendant       within       the   aggravated      range    only    if   the   state

provides the defendant notice of its intent to prove aggravating

factors, and a jury finds such factors beyond a reasonable doubt

or the defendant pleads to their existence.                       

(a6).     Once the judge selects the applicable range, the judge

must choose the defendant’s minimum sentence from within that

range;    a    separate         statutory   chart     provides   the     corresponding

maximum term.            

      Critically,          North    Carolina’s      sentencing    scheme     is    not   a

discretionary, guidelines system.                Rather, “it mandates specific

sentences,”         so    “no    circumstances      exist   under      the   Structured

Sentencing Act in which a North Carolina judge may impose a

sentence that exceeds the top of the range set forth in the

Act.”     

(quotation marks and citation

omitted).       Determining the maximum punishment for an offender’s

prior conviction, then, simply “requires examination of three

pieces of evidence:                the offense class, the offender’s prior

                                             9
record level, and the applicability of the aggravated sentencing

range.”     

n.9.

       In Simmons, based on these three pieces of evidence, the

Structured Sentencing Act authorized a maximum sentence of only

8   months’      community       punishment                 (no    imprisonment)             for     the

defendant’s prior conviction.                         

           Because Simmons’s

prior offense was not punishable under North Carolina law by

more than one year in prison, it did not qualify as a felony

predicate for a federal sentence enhancement.                               

       In      Valdovinos’s        case,              by     contrast,          the       Structured

Sentencing       Act    authorized          a     maximum         sentence        of    16     months’

imprisonment        for    his    prior          conviction.               That     the      sentence

ultimately      imposed     pursuant             to    his       plea    deal     was     10    to    12

months’     imprisonment         is     irrelevant.                  See    United        States      v.

Edmonds, 

, 176 (4th Cir. 2012) (reaffirming that

“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),

vacated on other grounds, 

, aff’d on remand, 

   (4th      Cir.     2012).                  Valdovinos’s         North        Carolina

conviction      was     punishable          by    imprisonment             exceeding         one   year

based on his prior record level, offense class, and sentencing

range.         It      therefore       qualifies             as      a     federal      sentencing

predicate.

                                                  10
      Valdovinos’s      contrary       argument   rests     on   a    misreading   of

Carachuri and Simmons.            Those cases direct that an offender’s

conviction must serve as our “starting place” not because, as

Valdovinos suggests, the moment of conviction (i.e., the moment

the defendant enters his guilty plea) is a magical one.                     Rather,

it is because the critical question for purposes of a federal

sentence enhancement is whether the particular defendant’s prior

offense     of    conviction     was   itself     punishable     by    imprisonment

exceeding one year.        

& 582; 

; see also U.S.S.G. § 2L1.2 cmt. n.2 (defining

“felony” as “any federal, state, or local offense punishable by

imprisonment for a term exceeding one year”) (emphasis added).

Undoubtedly, Valdovinos’s prior offense of conviction –- sale of

heroin -- was itself punishable by imprisonment for more than

one year.

      Simmons, and Carachuri before it, teach that we may not

measure a defendant’s maximum punishment based on a hypothetical

charge, a hypothetical criminal history, or other “facts outside

the record of conviction.”              

(quoting

).              But we do not do so in holding

that North Carolina’s “carefully crafted sentencing scheme,” 

  not    a   negotiated      plea    agreement,    determines     whether

Valdovinos’s prior conviction qualifies as a federal sentencing

predicate.        In   looking    to    the    Structured    Sentencing     Act    to

                                          11
establish     Valdovinos’s      maximum       sentence,       we    consider       only

Valdovinos’s own offense class and criminal history, and thus

attribute    to    him   only   the    crime   of     which    he   was   “actually

convicted.”        

  (emphasis     omitted).

This is the approach mandated by Carachuri and Simmons.



                                       III.

     Nonetheless, Valdovinos contends that a plea agreement of

the sort he negotiated –- that binds the judge to a sentence

once the judge accepts the plea -- displaces North Carolina’s

Structured Sentencing Act and establishes the maximum punishment

for every defendant sentenced pursuant to such a deal.                              The

argument fails.          Precedent offers no support for the outcome

Valdovinos seeks.         In fact, that outcome is fundamentally at

odds with important principles animating our decision in Simmons

and North Carolina’s sentencing scheme.

                                        A.

     A negotiated plea agreement differs in critical respects

from a legislative mandate like the Structured Sentencing Act.

While   a   plea    agreement    reflects      only    the    interests       of   the

prosecutor    and   individual    defendant,        the     Act    reflects    “North

Carolina's judgment as to the seriousness of a North Carolina

crime.”     

.               And while, under a plea

agreement, a defendant’s sentence hinges on merely the ability

                                        12
of    the    parties     to     reach    a   deal       and     the   willingness     of    the

sentencing judge to accept that deal, the Structured Sentencing

Act     ensures      that       objective,         uniformly          applicable      factors

determine each offender’s maximum punishment.

       Thus, to determine an offender’s maximum sentence, Simmons

instructs that in every case we look to the same three pieces of

evidence:         “the        offense    class,        the    offender’s      prior     record

level,      and    the    applicability            of     the     aggravated       sentencing

range.”       

n.9.            A plea agreement applies to just one

case.       Simmons’s instruction ensures that offenders with similar

criminal backgrounds who commit similar crimes will be sentenced

to    similar      prison       terms.        Of        course,       an   individual      plea

agreement provides no similar assurance.

       Moreover,         in     contrast      to        North     Carolina’s        mandatory

sentencing        scheme,      under     which     a     judge    may      never   “impose    a

sentence that exceeds the top of the range set forth in the

Act,” 

(quotation marks and citation omitted), a plea

agreement’s recommended sentence is not the final word under

North Carolina law.                 This is so because the sentencing judge

remains free to reject the agreement.

       Neither a defendant nor a prosecutor may “bind the State to

the dispensation of a particular sentence . . . until the trial

judge has approved of the proposed sentence.”                              State v. Marlow,

,       279    (N.C.    1993)          (citation      and    alteration

                                              13
omitted);    see    also       N.C.    Gen.    Stat.     § 15A-1023(b).            And    “the

prosecutor may rescind his offer of a proposed plea arrangement

at any time before it is consummated by actual entry of the

guilty    plea    and    the    acceptance         and   approval     of    the    proposed

sentence     by    the    trial       judge.”        

(emphasis omitted).             “A decision by the judge disapproving a

plea arrangement,” moreover, “is not subject to appeal.”                                  N.C.

Gen. Stat. § 15A-1023(b).                Accordingly, the state judge could

have     rejected       Valdovinos’s          plea     agreement      and       required    a

sentence of up to 16 months in prison, the statutory maximum

under the Act.

       Valdovinos protests that this argument “ignores the most

important     procedural          protection         included      in       [the    statute

governing his plea agreement]: the defendant’s right to withdraw

from   the   plea       agreement      and     plead     not   guilty      if    the     judge

rejects the agreed sentence.”                  Reply Br. at 5-6.             Certainly, a

defendant has this right.                The relevant North Carolina statute

provides:

       Before accepting a plea pursuant to a plea arrangement
       in which the prosecutor has agreed to recommend a
       particular sentence, the judge must advise the parties
       whether he approves the arrangement and will dispose
       of the case accordingly.    If the judge rejects the
       arrangement, he must so inform the parties, refuse to
       accept the defendant’s plea of guilty or no contest,
       and advise the defendant personally that neither the
       State nor the defendant is bound by the rejected
       arrangement. The judge must advise the parties of the


                                              14
       reasons he rejected the arrangement and afford them an
       opportunity to modify the arrangement accordingly.

N.C.   Gen.      Stat.    §    15A-1023(b)     (emphasis       added).       We   cannot,

therefore, be sure what would have happened if the state judge

had rejected Valdovinos’s plea.                     Perhaps Valdovinos would have

withdrawn his plea, and perhaps a jury would have acquitted him

of selling heroin in North Carolina.                    But the fact remains that

Valdovinos,       like     countless        other    defendants,     chose     to     plead

guilty under a plea agreement that allowed him to avoid trial

and its associated risk of a higher sentence than the agreement

offered.      And he pleaded guilty to an offense that carried a

maximum sentence of 16 months in prison under North Carolina

law.       His    conviction         thus    constitutes       a   proper    sentencing

predicate under the Guidelines.

                                             B.

       Valdovinos’s           remaining      arguments    to       the   contrary       are

similarly unconvincing.

       First, he contends that just as North Carolina prosecutors

declined to pursue Simmons as an aggravated offender, 

, so too they “declined to pursue [him] as a

felon” by agreeing to a sentence capped at 12 months in prison.

Appellant’s       Br.     at    17   (quotation       marks    omitted).          Not   so.

Valdovinos       was     charged     with,    and    pleaded    guilty   to,      a   North

Carolina Class G felony offense.                    See N.C. Gen. Stat. § 14-1(4)


                                             15
(defining       felony     as,       inter       alia,    a     crime    “denominated                as    a

felony     by    statute”).               That     prosecutors          agreed       to     a    lower

sentence       does     not    eliminate           the   fact     that       they     did       indeed

“pursue [him] as a felon.”

     In a similar vein, Valdovinos claims that “the prosecutor

must have found the existence of mitigating circumstances in

order     to     agree        to     a       sentence     of     less        than     one       year.”

Appellant’s       Br.    at        17.       But   it    is    just     as    likely       that       the

prosecutor agreed to the lower sentence to avoid the time and

expense    of     trial. 2          And       contrary     to    Valdovinos’s             claim,          it

matters    not     that       his        maximum    sentence       under       the        Structured

Sentencing       Act     would       similarly          have    been     12    months           if    the

parties     had       “obtained          a    mitigated-range           sentence”          based          on

judicial        findings       of        mitigation       rather        than        through          plea

negotiations.           

North Carolina sentencing judge

“remain[s] free at all times to sentence [a defendant] to a

presumptive       prison       term”         despite     the    existence        of       mitigating

factors,        Valdovinos’s              conviction          would      still        have           been

punishable by imprisonment exceeding one year and so would have

qualified as a sentencing predicate.                           United States v. Kerr, 

, 38-39 (4th Cir. 2013).


     2
       Of course, the prosecutor knew that Valdovinos faced
immediate deportation upon his release from prison, a fact that
might also have played a role in sentencing negotiations.


                                                   16
     Finally, contrary to his suggestion, Valdovinos had ample

notice of the consequences of his plea.      Measuring his maximum

sentence by reference to the Structured Sentencing Act therefore

does not rob him of the benefits of that plea.     This case does

not, for example, involve a defendant who negotiated a plea to a

lesser charge, only to have a later sentencing court impose an

enhancement on the basis of the defendant’s underlying conduct

or initial indictment on a greater charge.     That approach might

unfairly deprive defendants of the benefits of their negotiated

pleas, because it is “unfair to impose a sentence enhancement as

if the defendant had pleaded guilty to [a sentencing predicate]”

when in fact he did not.    Descamps v. United States, 

, 2289 (2013) (quotation mark and citation omitted).

     Here, however, Valdovinos did plead guilty to a sentencing

predicate, i.e., a felony punishable by more than one year.    Had

he wished to avoid a conviction punishable under North Carolina

law by imprisonment exceeding one year, he should have sought a

plea to a lesser crime. 3    Perhaps he did so, and perhaps the

prosecutor refused.   Whatever the case, Valdovinos ultimately


     3
       North Carolina classifies felonies in descending order of
seriousness from Class A (most serious) through Class I (least
serious). See N.C. Gen. Stat. § 15A-1340.17(c). At the time of
Valdovinos’s conviction, a North Carolina Class H felony offense
carried a maximum (presumptive) sentence of only eight months in
prison for an offender with his criminal history. See N.C. Gen.
Stat. § 15A-1340.17 (version effective until November 30, 2009).


                                17
elected to plead guilty to an offense punishable under state law

by a maximum term of 16 months in prison.                   He knew this, or

should have known it, at the time of his conviction and so

cannot now claim that the district court unfairly attributed to

him this predicate offense.



                                       IV.

     For the foregoing reasons, we hold that North Carolina’s

legislatively   mandated     sentencing        scheme,    not    a   recommended

sentence hashed out in plea negotiations, determines whether an

offender’s   prior   North      Carolina     conviction    was   punishable     by

more than a year in prison.              Because Valdovinos’s offense of

conviction was indeed punishable by imprisonment exceeding one

year,   it   qualifies     as     a    predicate    felony       under    Section

2L1.2(b)(1)(B) of the Guidelines.             We appreciate the fervor and

policy arguments of our friend in dissent.               Indeed, we can agree

with many of the latter.              What we cannot agree with is that

“application of relevant precedent” does not require the result

here.   Carachuri and Simmons do just that.               The judgment of the

district court is

                                                                         AFFIRMED.




                                        18
DAVIS, Senior Circuit Judge, dissenting:

       The majority holds that a federal sentencing enhancement

should be applied under the illegal reentry guideline, U.S.S.G.

§ 2L1.2(b)(1)(B), whenever an offender’s rap sheet contains a

prior    North     Carolina   conviction      that,      given   his   offense         and

criminal history levels, could have resulted in a sentence of

incarceration exceeding one year. I would hold instead that such

an offense does not qualify as a predicate felony if, due to a

statutorily        authorized,      judicially-accepted,           binding         plea

agreement, the state sentencing judge is legally compelled to

impose a sentence of no more than one year. Put differently, and

consonant with our relevant circuit precedent, I would treat

such an offender as if the state court judge had found him

statutorily ineligible for a sentence of more than one year,

which of course was true once the judge accepted his guilty plea

and before imposing sentence. See infra pp. 32-36 (explaining

the operation of N.C. Gen. Stat. § 15A-1023(b)).

       Our disagreement as to the outcome in this case stems, I

think,     less    over    the    content     and   application        of    relevant

precedent and more from a fundamental disagreement regarding our

role as arbiters of a flailing federal sentencing regime. Where,

as    here,   we    have   been    presented      with    a   choice    in       how    to

interpret the interstices of federal sentencing law, and where

one     choice     would   exacerbate       the   harmful     effects       of    over-


                                        19
incarceration         that        every     cadre       of   social       and        political

scientists (as well as an ever-growing cohort of elected and

appointed officials, state and federal, as well as respected

members of the federal judiciary) has recognized as unjust and

inhumane, as well as expensive and ineffectual, this insight can

and   should      inform     our    analysis.       I   deeply    regret        the    panel’s

failure to take advantage of the opportunity to do so here.

                                             I.

       First, some necessary and useful background.

                                             A.

       Over the latter half of the last century, enthusiasm for

incarceration pervaded crime reduction policy and the related

public discourse. The policy choices that resulted have created

an    unparalleled      rate       of   incarceration        –   nearly        2.23    million

people,      or   1   out    of    every    100     adults,      currently       sit    in   an

American prison or jail - a marked departure from the historical

experience of the United States as well as the modern experience

of    peer    democracies.          Dept.    of     Justice,          Bureau    of     Justice

Statistics, L. Glaze & E. Herberman, Correctional Populations in

the          United          States,           2012,             at        3           (2013),

http://www.bjs.gov/content/pub/pdf/cpus12.pdf. The United States

now holds the highest prison population rate in the world, over

5 to 10 times more than western European democracies. Int’l Ctr.

for Prison Studies, R. Walmsley, World Prison Population List 1-


                                             20
3 (10th ed. 2013). Though it is home to only 5 percent of the

world’s population, our nation accounts for nearly 25 percent of

its   prisoners.        Congressional              Research         Service,      S.    Kirchhoff,

Economic            Impacts        of             Prison            Growth          9        (2010),

http://fas.org/sgp/crs/misc/R41177.pdf.

      By all accounts, these “tough on crime” policies have been

an    abject    failure.       A    rapidly             accumulating         group      of   multi-

disciplinary research studies have come to the conclusion that

the   rate     of    incarceration           in       the    United    States       needs      to    be

significantly reduced, and both the executive and legislative

branches      seem     to   agree.          As    a     recent      study    prepared        by     the

research arm of the National Academy of Sciences put it, the

United States has “gone past the point where the numbers of

people   in     prison      can    be       justified          by    social       benefits,”        and

arrived at a point where mass incarceration itself is a major

“source of injustice.” National Research Council, J. Travis, et

al., The Growth of Incarceration in the United States: Exploring

Causes   and        Consequences        9    (2014)          (“National      Research        Council

Report”).

      Justice        Kennedy      summarized            it    best    ten     years     ago:      “Our

resources       are     misspent,            our        punishments         too     severe,         our

sentences too long.” Greenhouse, High Court Justice Supports Bar

Plan to Ease Sentencing, N.Y. Times, June 24, 2004, p. A14.

Consider the present state of our federal Bureau of Prisons:


                                                   21
more than half of its 200,000 inmates are incarcerated for drug-

related offenses, and only 6 percent for violent crimes. Dept.

of   Justice,    Bureau      of    Justice       Statistics,      E.A.    Carson         &   D.

Golinelli, Prisoners in 2012: Trends in Admissions and Releases,

1991-2012,                         at                      43                          (2013),

http://www.bjs.gov/content/pub/pdf/p12tar9112.pdf.                           Almost         half

of the inmates suffer from substance abuse disorders. Dept. of

Justice,     Bureau     of        Justice    Statistics,          C.     Mumola         &    J.

Karberg, Drug Use and Dependence, State and Federal Prisoners,

2004,                        at                        1                               (2006),

http://www.bjs.gov/content/pub/pdf/dudsfp04.pdf.                        And       of    those

released, 40 percent are rearrested or have their supervision

revoked within five years, frequently for minor violations of

the terms of their release. W. Rhodes, et al., Recidivism of

Offenders       on    Federal           Community     Supervision             8        (2012),

https://www.ncjrs.gov/pdffiles1/bjs/grants/241018.pdf.

      Each   inmate     costs       our   system,     and       thus   the        taxpayers,

$29,291 annually. Congressional Research Service, N. James, The

Federal    Prison     Population        Buildup:     Overview,         Policy      Changes,

Issues,               and                 Options                 15                   (2014),

http://fas.org/sgp/crs/misc/R42937.pdf.                 A       Brookings         Institute

project shows that direct corrections expenses total $80 billion

a year; total expenditure soars to more than $260 billion once

police, judicial, and legal services are included. The Hamilton


                                            22
Project, M. Kearney, et al., Ten Economic Facts about Crime and

Incarceration       in       the       United       States      13     (2014),

http://www.brookings.edu/~/media/research/files/papers/2014/05/0

1%20crime%20facts/v8_thp_10crimefacts                (“Hamilton        Project

Report”).

       Perhaps these numbers would be easier to accept if we had

conclusive data that severe punishment resulted in lower crime

rates. But there are no such data. “Through the 1990s and 2000s,

crime rates fell significantly, but the evidence indicates it is

unlikely that the rise in incarceration rates played a powerful

role in this trend.” National Research Council Report, at 340.

The data are, at best, mixed, and there is compelling evidence

that    severe   prison    sentences     actually   make     reoffending   more

likely when offenders reenter society. 

150-52;

see also, e.g., Daniel S. Nagin, Deterrence in the Twenty—First

Century 201, 42 Crime and Justice 199, 201 (M. Tonry, ed. 2013)

(“[T]here is little [empirical] evidence that increases in the

length of already long prison sentences yield general deterrent

effects that are sufficiently large to justify their social and

economic costs.”); Anne Morrison Piehl & Bert Useem, Prisons, in

Crime   and   Public     Policy,   542    (Joan   Petersilia    and   James   Q.

Wilson, eds., 2nd ed. 2011) (same).




                                         23
                                         B.

     The     heady       weight   of    this     experiment’s       failure    falls

disproportionately on our poor, our communities of color, and

excruciatingly so on young black men:

     Those who are incarcerated in U.S. prisons come
     largely from the most disadvantaged segments of the
     population. They comprise mainly [of] minority men
     under age 40, poorly educated, and often carrying
     additional deficits of drug and alcohol addiction,
     mental and physical illness, and a lack of work
     preparation or experience. . . . The meaning and
     consequences of this new reality cannot be separated
     from issues of social inequality and the quality of
     citizenship  of   the  nation’s  racial  and  ethnic
     minorities.

National     Research       Council    Report,    at    2;    see   also   Hamilton

Project Report, at 17 (“There is nearly a 70 percent chance that

an African-American man without a high school diploma will be

imprisoned     by        his   mid-thirties.”).        Such    disparities        make

official responses to crime and criminality a racially fraught

phenomenon.    In    2011,     blacks    were    incarcerated       at   nearly    six

times, and Hispanics at three times, the rate for non-Hispanic

whites; the combination of those two groups accounted for no

less than 60 percent of the total prison population. Dept. of

Justice, Bureau of Justice Statistics, E.A. Carson & W. Sabol,

Prisoners           in         2011,       at          7-8;         26        (2012),

www.bjs.gov/content/pub/pdf/p11.pdf.

     I should note that no respected researcher has suggested

that the disparities in imprisonment rates can be attributed to


                                         24
disparities in criminality. Studies have shown that, controlling

for    legally     relevant      differences,       black    defendants    are   more

likely to be confined before trial, more likely to be sentenced

to    prison     when   non-prison    sentences       are    available,    and   more

likely      to     receive       longer    sentences          than     their     white

counterparts. See Michael Tonry, Punishing Race: A Continuing

American Dilemma 70-76 (2011); Cassia Spohn, Racial Disparities

In Prosecution, Sentencing, And Punishment 166-93, in The Oxford

Handbook of Ethnicity, Crime, and Immigration                    (S. Bucerius, et

al., ed. 2013). Findings in a recent study of the New York

County District Attorney’s Office by the highly-regarded Vera

Institute of Justice exemplify these nationwide realities: it

concluded       that    racial   disparities    manifested       in    nearly    every

identifiable       point    of   “significant       prosecutorial       discretion.”

See Vera Institute of Justice, B. Kutateladze & N. Andiloro,

Prosecution       and     Racial    Justice     in     New     York    County    217,

http://www.vera.org/sites/default/files/resources/downloads/race

-and-prosecution-manhattan-technical.pdf                      (“Vera       Institute

Study”).

       As   a    result,     according    to    a    United    States     Sentencing

Commission (USSC) report, black male offenders receive sentences

20 percent longer than those imposed on white males convicted of

similar crimes. USSC, Report on the Continuing Impact of United

States v. Booker on Federal Sentencing 108 (2012). The truth is


                                          25
that “once they’re in [the] system, people of color often face

harsher punishments than their peers”; as Attorney General Eric

G. Holder recently stated, “[t]his isn’t just unacceptable – it

is   shameful[,]     unworthy      of   our    great      country,      and    our    great

legal tradition.” Eric G. Holder, Attorney General, Remarks at

Annual     Meeting   of   the      American        Bar    Association’s         House      of

Delegates       (Aug.         12,        2013),           in         Justice          News,

http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-

130812.html    (“Holder       Speech    at     ABA”)      (saved      as     ECF    opinion

attachment).

                                         C.

      The dangers of over-incarceration also present themselves

in   the   immigration    context.       Approximately          21,000       inmates       are

currently serving sentences for immigration-related offenses in

the federal Bureau of Prisons. Federal Bureau of Prisons, Inmate

Statistics:                                                                     Offenses,

http://www.bop.gov/about/statistics/statistics_inmate_offenses.j

sp (last updated June 28, 2014).                   This        sum         reflects         a

staggering    900    percent       increase     in    admission       since        1994;    in

fact, immigration prosecutions now make up the single largest

category of federal cases annually. Dept. of Justice, Bureau of

Justice     Statistics,       M.    Motivans,         Federal        Criminal       Justice

Trends,               2003,                   at                48                  (2006),

http://www.bjs.gov/content/pub/pdf/fcjt03.pdf;                       Exec.    Office       for


                                         26
U.S.    Attorneys,         Dep’t    of   Justice,        United      States    Attorneys’

Annual Statistical Report: Fiscal Year 2012, at 10 (2012).

       Immigration cases are processed in a manner bordering on

mechanical. Prosecutorial discretion is almost unheard of: less

than 1 percent of immigration matters referred to U.S. Attorneys

were declined for further prosecution. Dept. of Justice, Bureau

of Justice Statistics, M. Motivans, Immigration Offenders in the

Federal           Justice          System,         2010,        at       18          (2013),

http://www.bjs.gov/content/pub/pdf/iofjs10.pdf.                       Over     95    percent

of immigration defendants plead guilty; in the Fourth Circuit,

this    figure        is   98.6     percent.      

   USSC,    Statistical

Information        Packet,    Fourth     Circuit,         Fiscal     Year     2013,    at   8

(2013. The        median     case    processing         time   for   such     cases,      from

inception until termination in district court, is approximately

120 days. Motivans, Immigration Offenders, at 25.

       For        those      lacking         documentation,            disproportionate

sentencing is still another cause for concern. Recent literature

has indicated that one’s immigration status – in addition to

one’s     race    –    becomes      fodder   for    disparate        treatment       at   the

sentencing stage. See Michael T. Light, The New Face of Legal

Inequality: Noncitizens and the Long-Term Trends in Sentencing

Disparities Across U.S. District Courts, 1992-2009, 48 L. & Soc.

Rev. 447 (2014); see also Jeff Yates, et al., A War on Drugs or

a   War      on    Immigrants?        Expanding         the    Definition       of     “Drug


                                             27
Trafficking”     in     Determining          Aggravated         Felon     Status        for

Noncitizens, 

. Rev. 875, 880-81 (2005). According to one

study,   non-citizens     are    over       three    times      more     likely    to    be

incarcerated compared to similarly situated citizens. Light, at

465. And the length of non-citizens’ prison terms were adversely

affected,     too:     they    were     8.5     percent         longer     than    their

counterparts,       suggesting    “a       broader       pattern    of    punitiveness

against non-U.S. citizens, culminating in more incarceration and

longer prison terms.” 

470.

     All    told,     almost    one-quarter         of    the   Bureau     of     Prisons

population is composed of non-citizens – over 50,000 people -

and that has been the case since at least 2011. The overwhelming

majority serves time for drug convictions (44%), illegal reentry

(33%), illegal entry (6%), or some combination thereof, and the

average sentence for this population is approximately 85 months.

Bureau   of   Prisons    Office       of    Public       Affairs,      Information      on

Sentenced Inmates by U.S. Citizen and non-U.S. Citizen as of

Sept. 2013 (July 2014) (saved as ECF opinion attachment). * Of

course, common practice for most of these non-citizen criminals

is that they are passed along to be civilly deported once their

federal sentences come to an end.



     *
        These data were provided directly to me, upon request, by
the Bureau of Prisons.



                                           28
                                    II.

     Any reader who has come this far has my deep appreciation.

Let’s examine legal doctrine.

     It is against the above backdrop that we are called upon to

decide the appeal of Mr. Jose Ramon Solis Valdovinos.

     The    facts   governing     Mr.     Valdovinos’s   appeal   are   not

complicated: we know that in July 2009, he pled guilty in state

court to four counts of selling heroin over a four-week period

during the fall of 2008. Had he chosen to proceed to trial and,

upon conviction, to sentencing without a binding plea agreement,

Mr. Valdovinos would have faced a maximum sentence of sixteen

months. N.C. Gen. Stat. § 15A-1340.17(c) & (d) (2008). But we

also know that, upon his actual conviction, the state sentencing

court ceased to have the option of sentencing him in that range.

Because the state prosecutor had offered a plea agreement, and

because    the   state   judge   unconditionally    approved   its   terms,

including the binding provision to impose a sentence of no more

than twelve months, the court could only sentence Mr. Valdovinos

to a determinate range of ten to twelve months’ imprisonment.

J.A. 80. And so it did. 

legal issue is also straightforward. Though

we are guided by Supreme Court holdings in Carachuri-Rosendo v.

Holder, 

(2010), and United States v. Rodriquez, 

(2008), as well as our own precedent in Simmons and its


                                     29
progeny, see infra, my colleagues and I are in agreement that

this case presents a novel issue of federal sentencing law, one

that   is     posed       only     by    virtue       of    the   special       circumstances

presented by prior convictions under North Carolina’s Structured

Sentencing Act and obtained pursuant to a related state statute

authorizing a certain kind of plea agreement. The particular

question is: which characteristic of Mr. Valdovinos’s 2009 North

Carolina conviction, (1) the terms of his judicially-accepted,

and therefore statutorily-binding, non-felony (for federal law

purposes)         sentence,       imposed       by     virtue     of    a   duly-negotiated

binding plea agreement, or (2) the sentence that could have been

imposed      on     a    defendant       with    his       offense     class    and   criminal

history category who goes to trial or pleads guilty without the

benefit of a binding plea agreement, should govern the analysis

of whether he has committed a prior “felony . . . offense” for

purposes of § 2L1.2(b)(1)(B), the federal sentencing enhancement

applicable          to     those        convicted       of     illegal         reentry    after

deportation.

       The    majority         chooses     the       latter    option,      largely      on   the

ground       that        the   “principles            animating        [the]     decision     in

Simmons,” ante, at 12, support such a conclusion. Perhaps so. I

choose the former, and my reasoning is as follows: (1) it is

wholly       consistent          with     the        lessons      of    Carachuri-Rosendo,

Rodriquez, and Simmons, and their “animating principles,” not


                                                 30
least among them a due regard for federalism interests, and (2)

in the absence of precedent mandating a result, our decision

ought      to    be    grounded      in   an    informed      understanding             of   the

realities of the existing state and federal sentencing regimes

and the consequences that our rulings may bring to bear.

                                               A.

      Let       us    begin   with    the      Supreme      Court’s      instructions          in

Carachuri-Rosendo and Rodriquez. Both cases involved the use of

a   defendant’s          prior   state      conviction       to     justify       the    later

imposition of enhanced penalties under federal law, and both

teach   a       single    lesson:    “[W]e      are    to   look    to    the     conviction

itself as our starting place, not to what might have or could

have been charged.” 

(emphasis

added). In Carachuri-Rosendo, the Court eschewed the so-called

“hypothetical” approach, which would have permitted federal law

to treat the defendant as having committed an aggravated felony

if, hypothetically, his previous state court proceedings could

have treated him as such. This method, according to the Court,

inappropriately           ignored     both      “the     conviction        (the     relevant

statutory hook), and the conduct actually punished by the state

offense.” 

      We    later      observed,     in     United     States      v.    Simmons,       that   a

state court finding could “set the maximum term of imprisonment,

but only when the finding [of recidivism] is a part of the


                                               31
record of conviction.” 

, 243 (4th Cir. 2011) (en

banc)      (quoting   

,       n.12)

(emphasis added). And “in those cases in which the records that

may properly be consulted do not show that the defendant faced

the possibility of a recidivist enhancement, it may well be that

the    Government     will    be       precluded     from    establishing         that    a

conviction was for a qualifying offense.” 

. Use of “facts outside the record of conviction . . . cannot

and     does   not”   substantiate           a    conclusion    to    the       contrary.

(internal citations omitted).

       No one doubts that a sentence of twelve months does not

qualify as a felony sentence under federal law. (The majority

opinion elides Mr. Valdovinos’s careful differentiation between

the definitions of “felony” for state and federal purposes, as

it elides, as well, his differentiation between “felons” and

“aggravated offenders.” Ante, at 15-16.) If we look, as Simmons

instructs, to Mr. Valdovinos’s record of conviction, it is clear

that his conviction was not “punishable by imprisonment for a

term    exceeding     one    year”      as   is    required     by   the    Sentencing

Guidelines. U.S.S.G. § 2L1.2 cmt. n.2. According to the state

court judgment, the court “impose[d] the prison term pursuant to

a   plea    arrangement      as   to    sentence     under     Article     58    of    G.S.

Chapter 15A.” J.A. 80. The court had accepted Mr. Valdovinos’s

guilty plea, and, under North Carolina law, it was obligated to


                                             32
impose the sentence agreed to by the prosecutor and defendant,

which, in this case, was ten to twelve months.

     Mr.    Valdovinos’s    appeal        underscores    a    crucial

characteristic of the plea negotiation system as enacted by the

North   Carolina   legislature:    once    the   plea   agreement   is

“approved,” Article 58 of G.S. Chapter 15A “establish[es the]

maximum term of imprisonment” that can legally be imposed on a

particular defendant. 

. Specifically,

under North Carolina law,

     Before accepting a plea pursuant to a plea arrangement
     in which the prosecutor has agreed to recommend a
     particular sentence, the judge must advise the parties
     whether he approves the arrangement and will dispose
     of the case accordingly. If the judge rejects the
     arrangement, he must so inform the parties, refuse to
     accept the defendant’s plea of guilty or no contest,
     and advise the defendant personally that neither the
     State nor the defendant is bound by the rejected
     arrangement.

N.C. Gen. Stat. § 15A-1023(b) (emphasis added). Indeed, that is

the entire point of the system: once a judge accepts a 1023(b)

guilty plea, she is bound by the terms of the corresponding plea

agreement, and she may not go on to rewrite its terms in a

manner she sees fit. Cf. Freeman v. United States, 

, 2696 (2011) (Sotomayor, J., concurring) (observing that

the “very purpose” of Fed. R. Crim. P. 11(c)(1)(C), the federal

analogue of a North Carolina 1023(b) plea agreement, is “to bind

the district court and allow the Government and the defendant to



                                  33
determine what sentence he will receive.”). In other words, the

North Carolina judge was not “guide[d]” by the terms of the plea

agreement;    rather,    the   specific      sentence    is    “mandate[d]”        by

North Carolina statutory law. Cf. 

.

     If the above language sounds familiar, this is because we

pointed to this precise characteristic to support our conclusion

in Simmons that the North Carolina Structured Sentencing Act

should inform our federal predicate felony analysis. There, we

observed that the North Carolina legislature had set forth a

rigid    procedure      that    made        sentencing    ranges       “strictly

contingent”   on   a    defendant’s    offense    class       and   prior   record

level, and expressly limited sentences above that range “unless

the judge makes written findings” on the record. 

Unlike the federal Guidelines system, under which the sentencing

judge could impose a sentence outside of the suggested range, a

North   Carolina   judge   lacked     such    discretion.      To   read    into    a

state conviction a finding of aggravation that no judge ever

made, and that (as in the instant case) is beyond the legal

authority of the sentencing judge to make at all, is to use

“facts outside the record of conviction” in a manner barred by

Carachuri-Rosendo. 

     Though the government boldly takes the position that some

enactments of the North Carolina legislature are more important

than others, this argument is unavailing. Through Article 58 of


                                       34
G.S. Chapter 15A, the North Carolina legislature has implemented

a    rigid    procedure          that    makes         sentencing      ranges          “strictly

contingent”        on    the     agreed-upon          plea   agreement      -    and    in   fact

allows    for      no    option    for     the    judge      to   sentence       a     defendant

outside      that       range.    Mr.    Valdovinos’s         “record       of    conviction”

makes clear that the maximum possible term of imprisonment was

the range set forth in the plea agreement, and, as to this

“conviction itself,” the state court was compelled to impose a

sentence no greater than one year. We should take Carachuri-

Rosendo and Simmons at their word and decline the government’s

invitation to pick and choose among subsisting enactments of the

North Carolina legislature, assigning to such enactments tiers

of importance or creating statutory hierarchies that have no

basis whatsoever in federal sentencing law.

      The    majority          disagrees.        By    the   “conviction         itself,”     it

hastens      to    explain,       Simmons    actually          meant   the       “offense     of

conviction” itself, and by the “offense of conviction” itself,

it   really       meant    an     offender’s          maximum     punishment         given   his

offense class and criminal history point. My friends contend

that Mr. Valdovinos’s argument does not make sense because it

imparts undue importance to the “moment of conviction,” which is

not, after all, some sort of “magical” moment. Ante, at 11.

      The “moment of conviction” may not be magical (little if

anything          in     our      broken         criminal         justice        system       is,


                                                 35
notwithstanding its “considerable virtues” extolled by some, see

Hon. J. Harvie Wilkinson III, In Defense of American Criminal

Justice, 67 Vand. L. Rev. 1099, 1172 (2014)), but it certainly

is a logical one, an apt benchmark to apply in the course of

exercising       our    discretion     to    make       choices          about     mass    and

prolonged incarceration. And though it is painfully obvious to

say so, there simply is no “conviction itself,” see Carachuri-

, until the “moment” of conviction, and

there can be no “record of conviction,” see 

, until the judge “approves” the plea agreement and accepts

the guilty plea. “Any bargain between the parties is contingent

until the court accepts the agreement.” 

    (plurality      op.);   see      also     

     Ct.    at     2696

(Sotomayor,       J.,    concurring)       (treating         as     important,       if     not

“magical,” “the moment of sentencing”). Unless and until the

guilty    plea    is    accepted,    the    state       of    affairs        surrounding     a

North    Carolina       defendant   with     the    benefit         of   a    1023(b)     plea

agreement    is     speculative      at     best    –        and    certainly       just    as

“hypothetical” as the circumstances, addressed in Simmons and

Rodriquez, of a person who stands charged with offense conduct

that could have exposed him to an aggravated sentencing range

but the prosecutor and/or judge declined to pursue that course.

If hypotheticals are inoperative in the latter circumstances,

then they should be inoperative in the former.


                                            36
                                *       *      *         *         *

     The critical point here is that neither the holding nor the

reasoning    of     Simmons         mandates       the    proper         resolution     of    this

case.     Despite      the    protestation           from          the       majority   to    the

contrary, ante, at 18, Carachuri-Rosendo and Simmons are not

“controlling” here, in that their “animating principles” do not

compel the result reached by the majority. (Of course, on the

other    hand,    there      is     a   reason      why      our       opinions   are   labeled

“majority”       and   “dissent:”           they    have     the        votes,    but   not    the

better approach or the better arguments.)

     Whether or not the majority will acknowledge it, we have a

choice in fashioning our rule of decision here, as appellate

judges    sometimes       do.       What     might       inform        our    choice    in    this

instance?

                                               B.

        How about the important federalism interests at stake in

this case?

     That is, in the course of offering the plea agreement at

issue, the state of North Carolina evaluated Mr. Valdovinos’s

background and the circumstances of the case and determined that

he deserved a sentence of ten to twelve months - or, more aptly

put, that he did not deserve a sentence of any greater duration

than twelve months. This decision was made by the state’s local

prosecutors, whom we presume to have their fingers on the pulse


                                               37
of   community       concerns    and    to    act    with    genuine       regard     for

community mores. Their decision-making authority is of course

validated by the state Constitution and statutes, as well as its

corresponding rules of procedure. Today’s holding goes far to

derogate     the    discretion    and    independence         exercised      by     state

officials to enforce their own laws.

      Both Carachuri-Rosendo and Simmons expressed concern that

applying     hypothetical       sentencing      enhancements        to   prior    state

convictions triggers significant federalism concerns. Carachuri-

Rosendo emphasized that the federal sentencing regime should not

“denigrate     the    independent      judgment      of     state   prosecutors       to

execute the laws” of their 

. And we have

reiterated that when a state prosecutor has “declined to pursue”

a defendant as an aggravated offender, we ought not to “second-

guess” her judgment. Simmons, 649 at 249-50.

      The    same    logic   applies     here    –   in     fact,    even    more     so,

insofar as it involves the independent but collective exercise

of   the    combined    constitutional        authority       of    both    the     state

prosecutor and the state judge, each expressing the community’s

judgment that Mr. Valdovinos is not among the most dangerous and

incorrigible offenders deserving of the full retributive weight

allowed under state law.

      For any number of reasons, be it pragmatism, compassion, or

otherwise, the state prosecutor (and state judge) weighed the


                                         38
recourses       available        to     her        and     opted    to      agree       to    an

incarceration      term     of    no    more        than    one    year.     What       today’s

holding says is that that doesn’t matter: federal courts can and

will    “second-guess”           this       judgment.        Even        though     a    state

prosecutor (and state judge) chose a shorter, more humane term

of imprisonment, we are urged to disregard her decision because

it does not comport with the policy choice of one United States

Attorney’s Office as to its view of state sentencing values.

       The government concedes, as it must, that “a guilty plea

entered into [sic] under § 15A-1023(b) restricts a sentencing

judge’s discretion,” Gov. Br. 19, but the majority concludes

that this does not matter. It points to the fact that each plea

agreement   is     individualized,            hinging       on    “the    ability       of   the

parties to reach a deal,” ante, at 12-13. And it emphasizes the

fact that Mr. Valdovinos “chose to plead guilty under a plea

agreement       that   allowed        him     to    avoid     trial,”       ante,       at   15.

Manifestly, this describes every plea agreement, all of which

also “allow” the prosecutor to “avoid trial.” The majority’s

reasoning is aimed at identifying a seeming contrast, I suppose,

to the Structured Sentencing Act’s more wide-lensed “reflect[ion

of] North Carolina’s judgment as to the seriousness of a North

Carolina crime.” Ante, at 12. But its reasoning proves too much.

       First,    the   majority’s           assertion       that    “a     plea     agreement

reflects only the interests of the prosecutor and individual


                                              39
defendant,” 

strike many as shockingly ill-

informed. Every federal district judge in this circuit knows

that   plea    agreements    in     the   federal    system          are     subjected   to

rigorous review for conformity to broad policies by multiple

levels   of    supervisory     prosecutors,        whose          initials    customarily

appear    in   the   margins      of    the     written       agreements.       Cf.    Vera

Institute      Study,   at     115-16         (describing          Manhattan       District

Attorney’s guidelines for plea agreement offers). There is no

reason to suppose, as the majority opinion seems to suggest,

that conscientious prosecutors in a jurisdiction as large as

Mecklenburg      County,    North      Carolina    are     any       less    rigorous    in

fulfilling their responsibilities to the public. In my view,

such    discretionary      exercises      of     state    authority          are    equally

instructive – if not more so – of “North Carolina’s judgment as

to the seriousness” of a criminal offense committed within its

jurisdiction and in violation of its own law.

       Indeed, the fact that the North Carolina legislature has

instituted such a plea agreement system in the first instance

belies the majority’s dismissive approach. As every prosecutor

and    criminal   practitioner         well    knows,     a       plea   agreement     that

binds a judge to a particular sentence is a horse of a different

color, for most judges will not routinely bind themselves. That

the    special    procedure       is   embodied     in        a    duly-enacted       state

statute undoubtedly heightens the respect we owe it. I simply


                                          40
fail to see how the particularized evaluation of the need for

just   punishment   by   a   local   prosecutor   (an   agent   of   a    duly-

elected, Constitutional officer of the sovereign State of North

Carolina), under the authority of state statutory law, of the

actual facts at issue, and agreed to by a state judge (likewise,

a duly-elected, Constitutional officer of the sovereign State of

North Carolina), can be dismissed so blithely.

       And while it is certainly true that Mr. Valdovinos “chose

to plead guilty under a plea agreement that allowed him to avoid

trial[,]” ante, at 15, the benefits afforded to the prosecutor

when a plea agreement is accepted are equally individualized and

equally critical to the administration of her office’s duties.

“[T]he reality [is] that criminal justice today is for the most

part a system of pleas, not a system of trials”. Lafler v.

Cooper, 

, 1388 (2012); see also 

of

federal convictions and 94% of state convictions are a result of

guilty   pleas);    USSC,    Statistical   Information     Packet,       Fourth

Circuit, Fiscal Year 2013, at 8 (2013) (guilty pleas resolve

98.6% of immigration cases in the Fourth Circuit). It is true

that the presiding prosecutor offers plea agreements for any

number of reasons: a weak case, a sympathetic defendant, the

expense of trial, and on and on. As a matter of course, however,

she will only reach a plea agreement if it is in the state’s

interest (i.e., the community’s interest) to do so.


                                      41
       Actually, the majority’s ostensible distinction between the

sentencing act and the plea agreement statute seems to distract

more    than        it    informs.        There          is     no    doubt      that        any    plea

negotiation          system       is,     by       its        very     nature,     flexible          and

individualized,             grounded           in        real        world      intentions           and

consequences. But there is also no doubt that it plays a crucial

role     in     North           Carolina’s          sentencing          scheme.        Though        its

instructions cannot be fashioned into a neat table or grid, it

strictly       and       steadfastly       “mandates            [the]       specific     sentences”

available       to        the     state    court          when        the     court     accepts        a

prosecutor’s recommended sentence for any given conviction. Cf.

. At least according to Simmons, that is

what should carry the day.

                                                   III.

       My point thus far has been that the lessons of Carachuri-

Rosendo       and    Rodriquez       are       consistent            with    acceptance        of    Mr.

Valdovinos’s argument, and that the principles animating Simmons

remain equally at play in this case, as well. In other words, as

is     common       in     cases     involving            the        intricacies        of     federal

sentencing law, our traditional tools do not provide us with a

clearly       mandated          holding.       I     do       not     believe     that        my    good

colleagues in the majority dispute this; rather, where we differ

is what we choose to do with this jurisprudential license.




                                                    42
      The truly baffling question is why, when presented with a

choice   in     the    interpretation             of    federal          sentencing       law,     any

federal appellate judge acting in good faith (as my friends in

the    majority       indisputably          are)        would      choose     to     exacerbate,

rather    than      mitigate,         the    harmful          effects       of     our    nation’s

“throw-away-the-key” approach to incarceration?

      Now, more than ever, every measure of political and social

scientists has recognized that our nation’s mass incarceration

strategies      have    been     a     “moral,          legal,        social,      and    economic

disaster” that “cannot end soon enough.” Editorial, End Mass

Incarceration         Now,     N.Y.    Times,           May     24,      2014,     p.    SR10.      In

February of this year, the U.S. House of Representatives renewed

the   bipartisan       task     force       it     created         to    review     the       federal

criminal      code     and     the     trend           toward      “over-criminalization;”

groups   who     have    testified          in     support         of    reform     include        the

American   Bar       Association,           the    Heritage         Foundation,          and,      just

this past month, the Judicial Conference of the United States

and the Sentencing Commission. See Hearings Before the Over-

Criminalization         Task    Force        of    2013       of    the    Committee          on   the

Judiciary, House of Representatives (June 14, 2013) (Testimony

of    William     N.    Shepherd,       American           Bar      Association;          John      G.

Malcolm,      The      Heritage        Foundation);                

    2014)

(Testimony of Hon. Irene M. Keeley, Judicial Conference of the

United States; Hon. Patti B. Saris, USSC).


                                                  43
       The consensus for reform includes, not least of all, the

Attorney General himself, who has concluded that “far too many

Americans [are] serving too much time in too many prisons – and

beyond the point of serving any good law enforcement reason.”

Eric G. Holder, Attorney General, Remarks at Fourth Meeting of

Ministers Responsible for Public Security in the Americas (Nov.

21,               2013),                in               Justice                     News,

http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech-

131121.html (saved as ECF opinion attachment). The Department of

Justice   has       directed     federal     prosecutors       to   exercise         their

discretion toward minimizing the number of inmates in federal

prisons   for     low-level      drug   crimes    and    has    urged    Congress      to

enact   changes      in    the   federal     sentencing        guidelines       to   that

effect.     See     U.S.    Department       of   Justice,       Smart     on    Crime:

Reforming     the    Criminal     Justice       System   for    the     21st    Century

(2013).

       In fact, even as I write this, the United States Sentencing

Commission has issued a momentous, unanimous decision providing

that    its     previously-approved          Guidelines        amendment        reducing

federal drug base offense levels by two would be retroactively

applied. While Congress retains the authority to reject this

twenty-first century innovation before the end of this year, it

seems highly unlikely that it will do so, for all the reasons

discussed herein. It is, indeed, nearly impossible to keep up


                                           44
with   the   groundswell    of    support     evidencing     our   long-overdue

recognition    that     federal   sentencing     law   and    policy   are    in

desperate need of repair.

       All of this gives me pause. We federal judges have invested

no uncertain effort into crafting our tools of legal analysis,

and on many occasions those traditional tools reveal a true and

worthy answer. But at a point where actors from all sides of the

political spectrum have concluded that federal sentencing law

and policies have gone off the rails, at a point where even the

Executive Branch has recognized that “widespread incarceration

at the federal, state, and local levels is both ineffective and

unsustainable,” see Holder Speech at ABA, I would think that our

analytical    process     ought   not    to   blink    at    these   very    real

concerns.

       The majority opinion declines to examine Mr. Valdovinos’s

case through this lens, clinging instead to the myopic notion

that only our ostensibly “legal” analytical tools dictate the

holding in his case. I understand, in some instances, the need

for formalist thought and decision-making. But in the context of

federal sentencing, and in the face of mounting evidence of the

societal costs of this sort of legal reasoning, I cannot condone

or join in it.

       I suppose, in truth, this case is really United States v.

Kerr, 

(4th Cir. 2013), redux. (Kerr earns a single


                                        45
citation in the majority opinion, see ante, at 16, but it looms,

ominously, over this appeal.) Just as the North Carolina state

judge there had discretion to sentence in the presumptive range

(but did not), so too, here, the North Carolina state judge had

discretion to reject the binding plea agreement (but did not).

In each instance, reliance on an inchoate, hypothetical state of

affairs to lengthen a federal sentence runs into the teeth of

the relevant circuit precedents. I dissented in Kerr and I do so

here. Formalist, counter-factual responses to real world events

hold no comfort for me when the subject is federal sentencing.

                                          IV.

     I am reminded of the following prudent instruction from the

National Academy of Sciences:

     The decision to deprive another human being of his or
     her liberty is, at root, anchored in beliefs about the
     just relationship between the individual and society
     and the role of criminal sanctions in preserving the
     social   compact.   Thus,   good  justice    policy is
     necessarily based on a combination of empirical
     research and explicit normative commitments.

National     Research     Council      Report,     at    341.     Where   there     are

choices    that    can   be     made   that     would   permit    progress    in    the

individual case without doing harm to the transcendent legal

infrastructure rooted in deductive reasoning, we can and should

choose that path.

     Here,    in    a    tiny    corner   of     the    chaotic    morass    that    is

federal sentencing law, Mr. Valdovinos has offered us a measured


                                          46
approach,      to    a    novel    issue    of       federal     sentencing         law,    that

adheres to Supreme Court and our relevant circuit precedents and

is consistent with our values. If accepted by this panel, his

argument, which is surely more than merely “clever”, see ante,

at 8, would affect a tiny number of federal cases drawing legal

relevance from North Carolina’s historical (and now superseded)

sentencing regime. And Mr. Valdovinos’s sentence in this case

likely would be reduced to a bottom guideline of 15 months,

instead of the bottom guideline sentence he received, 27 months.

He’d soon be on his way home to Mexico, if not already arrived.

       That the majority declines the opportunity to decide this

case    on    the    foundations      discussed          herein       is     regrettable,       a

choice      that    not   only    ignores       the    growing        wisdom      informed    by

widespread         acknowledgement         of    our    unjust        federal       sentencing

jurisprudence, but actually hinders its progress. Would that my

friends could see that it’s a new century, complete with a host

of profound and valuable insights at our avail. I discern no

compelling reason why, in the performance of our adjudicative

responsibilities,           which     every           member     of         the     panel     has

unfailingly carried out to the best of our ability in this case

and    in    full    accordance      with       our    solemn        oath    to   “administer

justice,”      28    U.S.C.       § 453,    we       ought     not    to     draw    on     these

insights.




                                                47
    One of them is that sometimes, in our shared quest for

justice under law, it requires so little of us to achieve so

much.

    Respectfully, I dissent.




                               48