Barlow Strikes Back

After Justice Reinvestment, all North Carolina felonies are predicate felonies for certain federal purposes. That was the Fourth Circuit’s recent conclusion in United States v. Barlow. The decision significantly rolls back the court’s 2011 ruling in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), which held that many low-level North Carolina offenses were not felonies under federal law. Forgive the Star Wars references in this post’s title and below—I know this is serious business for defendants and victims, and not something to be taken lightly. But the recent history of how prior North Carolina felonies count for various federal purposes has an ebb and flow that called the series to mind. Here is a short history of the issue. Prequels. Under various federal laws, prior state convictions for a felony can trigger certain additional criminal consequences. How those qualifying prior offenses are defined varies from law to law, but the focus generally is on the maximum punishment for the offense. For example, the federal Controlled Substances Act allows for a sentence enhancement for defendants with a prior drug offense “punishable by imprisonment for more than one year.” 21 U.S.C. § 804(44). Similarly, the federal firearm prohibition applies to persons with a prior conviction for a “crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g). The same language appears in the armed career criminal sentence enhancement. 18 U.S.C. § 924(e). Before 2011, whether a federal defendant had a qualifying prior conviction under the laws mentioned [...]