PER CURIAM.
Harold Luzone Forte appeals the 180-month downward variant sentence imposed following his guilty plea to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2012). This was the statutory mandatory minimum sentence that could have been imposed on Forte, who was designated an armed career criminal (ACC) because he had three prior convictions for violent felonies or serious drug offenses.
In Forte's presentence report, the probation officer identified three prior North Carolina felony convictions that qualified as predicates under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA). The first was Forte's January 1991 North Carolina conviction for felony sale or delivery of cocaine. Forte, who was born in November of 1974, was 15 years old when he possessed and sold less than one gram of cocaine on two separate occasions. The two charges were consolidated for judgment, and Forte received a three-year sentence.
This sentence was imposed under North Carolina's Fair Sentencing Act (NCFSA), the then-applicable sentencing scheme and predecessor to the North Carolina Structured Sentencing Act (NCSSA).
The second ACC predicate was Forte's November 1994 North Carolina conviction for felony possession with intent to sell and deliver cocaine and felony sale or delivery of cocaine, for which Forte was sentenced to three years' imprisonment (hereinafter "1994 Drug Conviction"). Underlying the 1994 Drug Conviction was Forte's February 1993 sale of a crack rock to an undercover police officer. This conduct occurred when Forte was 18 years old. Like the 1991 Drug Conviction, under the NCFSA, the statutory maximum term of imprisonment that could have been imposed for these Class H felonies was 10 years' imprisonment.
The third ACC predicate was Forte's March 1995 conviction for felony second degree murder, for which Forte received a 14-year sentence. Forte committed the underlying conduct in November 1993, when he was 19 years old.
The probation officer recommended a total adjusted offense level of 31. Coupled with Forte's placement in criminal history category VI, this yielded a Sentencing Guidelines range of 188-235 months' imprisonment. Forte did not object to the PSR.
Forte was 39 years old at his October 2014 sentencing, at which defense counsel conceded that Forte was properly designated an armed career criminal. The court adopted the PSR, including the recommended Guidelines calculations and resulting sentencing range.
Defense counsel offered an extensive argument for a downward variance to the statutory mandatory minimum of 180 months. Counsel suggested that the court consider the age of Forte's ACC predicates, emphasizing that they all occurred when Forte was a teenager. Counsel observed that the 1991 Drug Conviction would not have qualified as an ACC predicate had Forte been tried and convicted as a juvenile instead of as an adult. Counsel suggested that treating as an ACC predicate a prior conviction that accrued when the defendant was a juvenile, but was treated as an adult under state law, caused constitutional concerns because North Carolina permitted significantly more harsh treatment of juvenile offenders than other states. Thus, counsel's objection to the ACC designation sounded in substantive due process and equal protection.
While the district court did not go so far as to accept Forte's constitutional argument, it did agree that the age of the ACC predicates made a 180-month sentence more appropriate. After a fairly involved colloquy with Forte, the district court imposed a 180-month sentence for the reasons identified by defense counsel. The court further imposed a five-year term of supervised release. This appeal timely followed.
In his brief on appeal, Forte argues that using the 1991 Drug Conviction as an ACC predicate violates his rights to due process and equal protection. This argument turns on Forte's position that the same conduct would "likely have been" prosecuted as an act of juvenile delinquency "in any other state" than North Carolina, which elected to prosecute Forte as an adult despite being only 15 years old when he committed the offense. (Appellant's Br. at 19). Forte contends that "[a]llowing North Carolina convictions to be treated uniformly with other states' convictions simply does not comport with the intent of the law, or with the constitutional guarantee of equal protection under the law." (Appellant's Br. at 18-19).
Forte's arguments are foreclosed by circuit precedent.
In light of the broad holdings in
On June 30, 2015, after the parties filed their briefs, we published our decision in
Under the ACCA, a defendant convicted of violating § 922(g) is subject to a statutory minimum sentence of 15 years of imprisonment if he has sustained 3 prior convictions for either violent felonies or serious drug offenses. 18 U.S.C. § 924(e). A "serious drug offense" is defined, in part, as a state offense that involves the manufacture, distribution, or possession with intent to manufacture or distribute a controlled substance "for which a maximum term of imprisonment of ten years or more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii).
In
Newbold had been sentenced for 8 offenses consolidated in 2 different judgments; without specifying the sentences for each offense, the judgments reflected that Newbold received 7 years of imprisonment for 3 of these offenses and 10 years of imprisonment for the remaining 5 offenses.
Because the judgment did not list any aggravating factors found by the sentencing judge, and there was no evidence in the plea transcript to support Newbold's admission of any aggravating facts, we concluded that the record failed to support the conclusion that Newbold faced up to 10 years of imprisonment for his conviction.
The same result is had here. The Government acknowledges that neither the 1991 Drug Conviction nor the 1994 Drug Conviction qualify as a "serious drug offense" under
Thus, although we reject Forte's constitutional attack on his ACC sentence, we vacate his sentence and remand this case for resentencing in light of