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United States v. Charles

United States Court of Appeals, Fourth Circuit

July 26, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ROGER DALE CHARLES, II, Defendant-Appellant.

          Argued: May 7, 2019

          Appeal 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; 1:16-cv-00136-MR)

         ARGUED:

          Ann 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.

         ON BRIEF:

          Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.

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

          Before WILKINSON and NIEMEYER, Circuit Judges, and DUNCAN, Senior Circuit Judge.

          NIEMEYER, CIRCUIT JUDGE:

         The "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.

         In 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")).

         Ten 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 consequence."

         On 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.

         Nonetheless, 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 ...


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