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United States v. Cornette

United States Court of Appeals, Fourth Circuit

July 30, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
RANDALL CORNETTE, Defendant-Appellant.

          Argued: March 19, 2019

          Appeal 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; 1:16-cv-00153-MR)

         ARGUED:

          Joshua 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.

         ON BRIEF:

          Caryn Devins, Research & Writing Specialist, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant.

          R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

          Before AGEE and FLOYD, Circuit Judges, and DUNCAN, Senior Circuit Judge.

          FLOYD, CIRCUIT JUDGE:

         Appellant 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 agree.

         I.

         Cornette 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.

         Cornette 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.

         In 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).

         The 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 followed.

         II.

         Whether 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. 2009).

         III.

         We 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.

         A.

         Under 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 years[.]" ...


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