Argued: March 19, 2019
from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K.
Reidinger, District Judge. (1:08-cr-00056-MR-1;
B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Asheville, North Carolina, for Appellant.
Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
Devins, Research & Writing Specialist, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina,
Andrew Murray, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
AGEE and FLOYD, Circuit Judges, and DUNCAN, Senior Circuit
Randall Cornette was sentenced as an armed career criminal
because of certain predicate state convictions that the
district court considered to be "violent felonies"
under the Armed Career Criminal Act (ACCA), 18 U.S.C. §
924(e). Cornette now contends that in light of the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015), he no longer has the requisite number
of predicate offenses for the ACCA's sentencing
enhancement. In the unique context of the facts presented, we
pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) pursuant to a written
plea agreement with an appeal waiver. Under 18 U.S.C. §
924(a)(2), this conviction carries a maximum prison sentence
of ten years. However, the presentence report (PSR)
designated the following predicate "violent felony"
convictions under the ACCA: (1) a 1976 Georgia felony
burglary; (2) a 1979 North Carolina breaking-and-entering;
(3) a 1986 North Carolina felony possession with intent to
manufacture/sell/deliver schedule II controlled substance and
felony sell/deliver schedule II controlled substance; and (4)
a 1989 North Carolina felony breaking and entering. Based on
these convictions, the district court determined that
Cornette was an armed career criminal under the ACCA and
sentenced him to 220 months of imprisonment.
did not challenge the ACCA enhancement at his initial
sentencing, although he appealed the district court's
judgment. We vacated the sentence because the district court
procedurally erred in failing to adequately explain
Cornette's sentence. United States v. Cornette,
396 Fed.Appx. 8, 8 (4th Cir. 2010). On remand, Cornette
challenged his ACCA enhancement but withdrew the challenge
prior to resentencing. On resentencing, the district court
once again sentenced Cornette to 220 months imprisonment. A
review of that resentencing reveals that the district court
did not specify whether it relied on the ACCA's
enumerated clause, which includes "burglary" as a
qualifying violent felony, or the residual clause in finding
that Cornette qualified for the ACCA enhancement.
2012, Cornette filed his first motion under 28 U.S.C. §
2255 alleging ineffective assistance of counsel. The district
court denied Cornette's motion and denied a certificate
of appealability. After the Supreme Court's decision in
Johnson ruling the residual clause of the ACCA void
for vagueness, Cornette filed a second § 2255 motion
arguing that he was no longer an armed career criminal. The
district court dismissed this as an unauthorized second and
successive § 2255. We granted a motion authorizing
Cornette to file a second and successive § 2255.
Cornette then filed a § 2255 motion, once again arguing
that he no longer qualified as an armed career criminal under
Johnson because (1) his 1976 Georgia burglary
conviction no longer qualified as a predicate offense for
ACCA purposes under the remaining force or enumerated clauses
of ACCA and (2) his North Carolina controlled substance
convictions did not qualify as ACCA predicates in light of
our decisions in United States v. Newbold, 791 F.3d
455 (4th Cir. 2015), and United States v. Simmons,
649 F.3d 237 (4th Cir. 2011) (en banc).
district court denied Cornette's motion, this time on the
merits, finding that Cornette's sentence was proper
because his Georgia burglary convictions met the elements of
generic burglary under § 924(e)(2)(B)(ii). This appeal
an offense constitutes a "violent felony" under the
ACCA is a question of law that we review de novo. See
United States v. White, 571 F.3d 365, 367 (4th Cir.
begin with an overview of the post-Johnson ACCA
landscape. Second, we address why the appeal waiver in
Cornette's plea agreement does not bar us from reaching
the merits of his ACCA claims. Third, we determine that
Cornette's 1976 Georgia burglary conviction does not
qualify as a violent crime under the ACCA. Finally, we hold
that Cornette's North Carolina controlled substance
convictions do not qualify as serious drug offenses under the
ACCA. Accordingly, we grant Cornette's § 2255 motion
and remand for resentencing.
the ACCA, a person who is convicted of being a felon in
possession of a firearm and who "has three previous
convictions . . . for a violent felony or a serious drug
offense . . . committed on occasions different from one
another . . . shall be . . . imprisoned not less than fifteen