Argued: May 7, 2019
from the United States District Court for the Western
District of North Carolina, at Bryson City. Martin K.
Reidinger, District Judge. (2:04-cr-00027-MR-DLH-1;
Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant.
Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS
OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina,
Andrew Murray, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
WILKINSON and NIEMEYER, Circuit Judges, and DUNCAN, Senior
NIEMEYER, CIRCUIT JUDGE:
"concurrent sentence doctrine" authorizes a court
to leave the validity of one concurrent sentence unreviewed
when another is valid and carries the same or greater
duration of punishment so long as there is no substantial
possibility that the unreviewed sentence will adversely
affect the defendant or, stated otherwise, so long as it can
be foreseen with reasonable certainty that the
defendant will suffer no adverse collateral consequences by
leaving it unreviewed. In this case, we find that this
standard is satisfied when the only potential harm to the
defendant is grounded on unrealistic speculation.
2005, Roger Charles, II, was convicted of possession of more
than 50 grams of cocaine base with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1), and possession of a
firearm by a felon, in violation of 18 U.S.C. §
922(g)(1). On his drug-trafficking offense, he was sentenced
to 360 months' imprisonment and 10 years of supervised
release, and on his firearm offense he was sentenced to 360
months' imprisonment and 3 years of supervised release,
with the two sentences to be served concurrently. Both
sentences were enhanced by prior felony convictions. On the
drug-trafficking offense, the prior convictions served as the
basis for finding Charles to be a career offender under
U.S.S.G. § 4B1.1(a), and on the firearm offense, they
served as a basis for finding Charles to be an armed career
criminal under 18 U.S.C. § 924(e) (the Armed Career
Criminal Act ("ACCA")).
years later, after the Supreme Court handed down its decision
in Johnson v. United States, 135 S.Ct. 2551 (2015),
which narrowed the category of offenses that can be used to
enhance sentences under ACCA, Charles filed a motion under 28
U.S.C. § 2255 to reduce the sentences for both of his
convictions. The district court found Charles's sentence
for drug trafficking to be valid and declined to review the
sentence for his firearm conviction, applying the concurrent
sentence doctrine. The court concluded that leaving the
firearm sentence unreviewed would cause Charles no
"realistic potential adverse collateral
appeal, Charles contends that the district court erred in
applying the concurrent sentence doctrine because he would
indeed be exposed to the possibility of a collateral
consequence if his firearm sentence were not reviewed and
reduced. Because the collateral consequence posited by
Charles rests on unrealistic speculation, however, we affirm
the district court's application of the concurrent
sentence doctrine in the circumstances presented to it.
after the parties filed their briefs in this appeal, Congress
enacted the First Step Act of 2018, and Charles now claims
that leaving his firearm sentence unreviewed will also have
the consequence of denying him relief under that Act. Given
this development, we remand to allow the district court, in
the first instance, to consider Charles's ...