Legal Case Summary

Good morning and welcome to the fourth circuit. We're prepared to hear argument on our first case, 12-4775, the United States first is Kerr. Mr. Crump, we'll be glad to hear from you. Mr. Crump, before you begin, let me just suggest that the supplemental briefing that we had the parties do may have led you all down some rabbit trails. We don't necessarily need to go down, which is our fault not yours. So you might begin with directly addressing the Simmons factors, the application of Simmons by reason of the offense level, the criminal history, and whether they're findings of aggregation. The exact test that was set out in Simmons, because depending upon the resolution of that question, the other items on the mandate and ineffective assistance of council or whatnot might not be quite as important. So I didn't want you all to use all your time on that and skip over the main meat, so to speak. Thank you, John, and good morning to this honorable cohort. Norman Carl contains it for federal criminal law purposes on the Northclifestrucher Sense Nath, a sense which is imposed for a particular offense, for a particular prior record level, in the mitigate range of punishment, is for an offense, which is different than an offense in the aggravated range of punishment, or the presumptive range of punishment. And the core of Norman Carl's argument is that he could not have been sentenced before he was convicted. That 18, 92, 2G1 prescribes a conviction for a crime punishable by more than one year. He could not have been sentenced in North Carolina before he was convicted, and he could not have been convicted before the honorable State District Court judge found the sense and range. Obviously, he had to find the offense class, the prior record level, but he had also to find the range of punishment before he was convicted. Once he was convicted, then his exposure began

. And an analogy that Norman Carl might make, a little bit different would be to our federal system, rule 11 colloquy, and defend its stance in front of the District Court judge, and goes to a lengthy, 20, 30 minute colloquy, the judge fires that the police, frequently voluntarily made, it sets the plea. Then there's a factual basis, and there's a deficiency in the factual basis, and since it's deferred, or it's the sense of the police deferred to the sense of the factual basis, in that federal case, the defendant hadn't been convicted. Even though his plea is freely and voluntarily made, he hasn't been convicted until that judge finds their factual basis to sports plea. But in Simmons, the court said that resolving the question of the applicability of the range of punishment for the actual defendant, not a hypothetical defendant, actual defendant, requires the examination of three pieces of evidence, the offense class, the prior record level, and the applicability of the aggravated sentencing range. And I don't think any of those are an issue in this case. Is that correct? There is an issue, Your Honor. The issue is what is meant by that footnote nine by aggravated sentencing range. Don MacCara continues. I aggravated what the meat mitigated, was it? We were contending, it does mean mitigated. That the word aggravated means, is it the presumptive range of punishment? Is it the mitigated range of punishment? Or is it aggravated? Otherwise, that range, we say aggravated range of punishment, there has to be a difference to the state judge to make a determination as to the level of aggravation. So there's three factors, the prior record criminal history and then the level, the sentencing range, and that would be, when the court says, aggravation is sentencing range, it's a court just took that literal, and not in the spirit of the law, then that would eliminate the presumptive range and you just go with proof it. Well, the footnote actually says the applicability of the aggravated sentencing range. And I guess you're saying that, whether or not that sentencing range applies, is for the judge to decide. That's great, John. Well, but with respect to aggravation anyway, as to the factors in North Carolina, most all of those factors are now for a jury to decide in the first instance, and then the judge decides whether or not they're mitigating circumstances and then ways those circumstances in deciding whether or not to impose a mitigated sentence. But all of that is in the judge's discretion

. And we're no longer in this case, in my mind anyway, dealing with a theoretical defendant because we have a defendant that fact is subject to a sentence in excess of one year if the judge in his discretion decides to impose it. So what the Simmons have to do with this case? Well, Simmons says, it says that this is a legislative mandate. It's not a guideline system. And for each felony offense, there are 18 specific ranges, 18 offenses. So in this particular case, for belongs breaking injury, class H, prior left before, there would be three separate offenses. Well, I mean, three separate ranges of punishment for the same offense. I'm not sure I buy that they're three separate offenses. The defendant has been convicted of an offense. The question is, where in that table is the judge ultimately going to land? And it seems to me that if the judge has discretion to decide whether or not to impose a sentence in excess of one year, then we are no longer dealing with a theoretical worst case scenario defendant that Simmons was talking about. You know, the judge does not have, we respectfully take issue, that the judge's discretion, the judge has discretion as to the, to the punishment range. But once the judge exercises that discretion and finds that the fact that it's a mitigation outweigh the aggravation, the fact that it's an aggravation, and that the mitigation range of punishment is appropriate. Then that judge's discretion has been circumscribed by the legislature, and she can't give more than 11 months. Let me ask you this. You know, I suppose that's a rule we could, a holding we could impose in this case. But I don't think it's fair to say that that's what Simmons dictates as a matter of law, given the facts and Simmons. Do you agree with that? Your honor

. I don't think a yes answer to Judge Dias hurt you. It may not be the answer you prefer, but I don't think it hurts you. Can I give a yes answer to explain? Certainly. All I'm saying is if you want us to go down that route, Simmons is not the vehicle. It doesn't really dictate the result in this case. Is that fair? I mean, I, I, I, Simmons does not mandate, but such a rule would be perfectly consistent with that. But the rule would be consistent, and Simmons did make a distinction between that aggravated range of punishment and the presumptu range of punishment. And Simmons correctly would say that the aggravated range is a different offense. Presumptu range is a different offense. And what Carl would ask this court to do is it's stand the logic to this narrow range of cases and make Simmons perfectly logical that the mitigated range of punishment is also a specific distinct offense. Well, it really be a narrow range though, because you tell me where I'm off base here, if this is not your position. But it seems to me your position now is that even though the judge has the discretion with a specific defendant based on that defendant's criminal history and offense level, even though the judge by statute in North Carolina has the discretion to sentence them to a sentence in excess of 12 months. If they in fact impose a sentence in a range that does not exceed the 12 months, it is the fact of the actual sentence imposed that determines whether or not there either sentenced under the armed career criminal, guideline, or whether they would in fact have been guilty as a felon for possessing a firearm. You know, that is not how Carl, the characterized the judge is discretion. But you tell us what the rule would be if we ruled in your favor in this case, because it's not just going to apply to you, it will apply to a lot of other people. Well, it's just like, no, nine, it's very simple

. In turn, a crime is punishable, the act, rather than 12 months. Look at the judgment, look at the first page of the judgment. See the offense class, the prior record level, and the record of aggravation. And in this particular case, so it would depend upon the level in which the judge chose to exercise his or her discretion to sentence. That's great, that's great. It's not a guideline system like prior level four, from a minimum of seven months to say, well, over 14. The minimum in the mitigate range is seven, the maximum in the present, if I know it's 14, I don't know what the maximum in the aggravation is. But the judge's discretion is not a guideline system. The judge's discretion is to determine the range of punishment. And the legislature just has a mandated system. It's the determinant since statute. It's not like the authority of a federal judge. It's so circumscribed that her authority is just determined the range. But once she determines the range, she has that discretion. But once she.

.. So it would be the basis, that in view of your answers to Judge Diaz's question, that Simmons does not require that result. What would be the basis that you would give us for making that holding? This is the new rule. What's the basis for that? You honor Norman Carl contend that the statements and semis about the 18 offense levels, that would be dictum, that wasn't necessary. The court could have just said, it's determined based on prior criminal record and offense class. But the court distinguished those 18 offense levels. And it went to links to the distinguished between the aggravated range and the presumptive range. And then the court, it's a horrible court, went on in Powell and in Miller to reaffirm that in addition to the offense class prior record level, there's a third factor and that's the aggravated range of punishment. And Carl does take aggravated range of punishment to mean the three ranges, not just the top range. You've got some more talent, if you want to use it. This is it. One more statement, brief statement, just practical. The state judge gave Norman Carl a sense when he ate my minimal. A sense in the presumptive range has a memo of sentence and I'm up. If he was convicted of an offense, the presumptive range, what the judge could have chosen, but she didn't choose it. And eight months since went authorized and the Senate's had

. I think the government concedes that he was actually sentenced in the mitigated range. Oh yes. There's no dispute about that. The question is, what is the effect of the judge's decision on his, on the consequence, what are the consequences from that on the federal statue? Has he been convicted of a crime punishable by more than one year? And your argument is that he has not. That's right. Because the judge constrained her discretion by choosing to sentence in the mitigated range. That's right, John. And to rule otherwise, simply returns to heart. Is that your argument? How, if we rule that the presumptive range, just because the judge has discretion to sentence in the presumptive range, even though the judge has exercised her discretion before it by statute, not to do that. How is that different from our prior precedent in harp? Because in harp, we said, well, judge could sentence as if the person is the most felonious at the highest aggravating level. And Simmons took all of that away. And so is that your argument that basically? Yes, you are. Assistant with Simmons is to look at what the judge actually does to this actual defendant. This judge didn't think this person was the kind of serious person who deserves 15 years in federal prison based on the record that was presented to her. All of our cases talk about, not all of them, but many of our cases talk about what Congress was after under the Armed Career Criminal Act. What Congress was after in 922-G1, fell in impossession

. Well, this judge, this North Carolina judge, has told us as clearly as possible, this is not the person that Congress is interested in. The US attorney may be interested in him, but Congress wasn't interested in this person. Because North Carolina law doesn't treat him as that kind of person. You've got some more time for the bottle. Thank you, Your Honor. Thank you. Mr. Ran, will we be glad to hear from you? Good morning, mate. Please court, roughly ran for the government. What's the answer to Judge Davis' question? Is this a defendant that is barred from being treated as someone who, in fact, was eligible for a sentence of greater than a year? The government would contend, based on North Carolina statutory law, North Carolina case law, and this court's decision in Simmons, that Mr. Kerr was eligible to be punished by more than a year for his. Judge Davis says we're going back to Harp. Why is Harp different than this case? Harp is different from this case because, in Harp, this court looked at the absolute maximum sentence that any defendant could receive under North Carolina law to determine what the maximum punishment was. Even if, in fact, that particular defendant could not receive that sentence. That's correct. In this case, Mr

. Kerr, the government would contend, was eligible to receive a sentence of more than a year, based on both the North Carolina statutes and the North Carolina case law, interpreting those statutes. In creating the three different ranges of structured sentencing which is authorized under 15A, 1340.17, the general assembly did not create a wall between each of those ranges. It created a door on each of those ranges, pursuant to which the judge could move up or down in an exercise of his or her discretion. In 15A, 1340.13E, the statute reads that the court may deviate from the presumptive range when a judge finds both aggravators and or mitigators and determines that the aggravated or mitigated range may apply. In 15A, 1340.16B, the general assembly said that the court may depart from the presumptive range if aggravators and mitigators apply and may impose a sentence in the mitigated range. And the case law, in the cane case, in the biven's case, in the Norris case, the North Carolina courts have said that even when a judge finds that mitigators outweigh aggravators or aggravators outweigh mitigators either way, and finds that a mitigated range sentence is appropriate, that judge still has the discretion to sentence within the presumptive range irrespective of the findings. No dispute about any of that. And here we have a judge who said this guy doesn't get more than one year. That's correct. And so the question, I think it's fairly straightforward, is it consistent with Simmons to rule your way in favor of the government or is it consistent with Simmons to rule in favor of the defendant here? Well, we agree. There's no question the judge has question. You just said it yourself. The judge can go to aggravate it, the judge can remain in presumptive, the judge can go to mitigate it, the judge can make mitigation findings and still go to presumptive

. But here on this defendant, given his record, a real judge with a real defendant in front of her said this guy gets no more than 11 months. So which is more consistent with Simmons? The government would contend that consistent with Simmons and the North Carolina law, that the maximum punishment that Mr. Kerr could have received up until the time that the judge imposed the actual sentence was 14 months. A Mr. Chair, I know what you mean by up until the time the judge imposed the actual sentence. The government disagrees with Mr. Cromp that the exercise of discretion is complete once the judge chooses the sentence in range. Under the statutes under 15A, the government would contend that the exercise of discretion is complete once the judge chooses the actual sentence that in exercising his or her discretion, the judge doesn't just choose a range, the judge chooses an actual sentence. And at the right before the moment when the judge chooses the actual sentence, Mr. Kerr is eligible to receive a sentence from anywhere from seven months at a minimum to 14 months at a maximum. But if the judge says I'm going to sentence from the mitigated range and the upper end of that mitigated range does not allow for a sentence of greater than a year, then hasn't he then circumscribed his discretion and actually dictated what the appropriate range is going to be? Well, in Simmons at page 244, this court said, we do not rely on the structured sensing act to decrease the maximum term of imprisonment but to establish the maximum term of imprisonment. But I think that's what Judge D. I has just asked you. You say, and I understand the argument, you say until the judge imposed a sentence, everybody's in the dark. In fact, you seem to be suggesting even the judges in the dark until the judge pronounced a sentence. But in fact, the judge presumably will say, some judges certainly many judges will say, I'm going to sentence in the mitigated range

. Judge could say that on the record and thereby announce to the whole world, including the North Carolina legislature, I've now bound myself. So I'm not sure it's true that everybody's in the dark including the judge until the judge actually imposed a sentence. I think the judge knows full well what she's going to do when she makes the determination as she did here, this defendant will be sentenced in the mitigated range. Now, whether the judge actually announced that on the record, of course we don't know, we don't have a transcript, do we? Not that I'm aware of. Right, we don't have a transcript. But certainly many judges in both state and federal court say things like that every day. And then they turn to counsel and they say, you know, in fact, in federal court, the judge is almost mandated to declare, as you well know, what the guidelines are before the judge entertains allocution from the parties. So I'm not sure it's persuasive to say the judge is in the dark about what the sentence is going to be, how she's going to exercise her discretion until she actually selects a range. Well, both the cane and the Biven's case, in both of those cases and in numerous other cases that the government cited in the brief, the judges found that the mitigators outweigh the aggravators or the aggravators outweigh the mitigator. Yeah, Biven's the judge found one mitigator. And then the judge said, despite that, this guy belongs in the presumptive. Correct. And so that is consistent with North Carolina law, which says that the judge has the discretion even when a judge finds that a mitigator outweighs any aggravators or vice versa, to sentence within the presumptive range or within any range that is available to the judge based on the judge's findings. What, under Simmons is anything else necessary besides that? The government would continue to know that under the three factors, I agree with Mr. Cromp that under note nine in Simmons that the three factors are the offense level, the criminal record and the availability of the aggravated range. The aggravated range is not an issue here and so the maximum sentence that Mr. Curface for the 2008 Breakin and Renner in Convictions was 14 months. The rule that Mr. Cromp would have this court imposed would be to tell the district judges to ignore North Carolina law, which is straightforward under 15A about the discretion and to focus on the actual sentence that was imposed by the state court judge. The actual sentence or the sentence range, I mean, I don't think he's gone that far. I think he's suggesting that if the upper end of the mitigated range for a particular defendant can in no situation result in a sentence of greater than a year, then that's the actual sentence range for that defendant and the federal judge should consider that accordingly. Well, some of the North Carolina ranges, the North Carolina ranges are concurrent sentences. So in the mitigated range, Mr. Curc could have received a sentence of nine to 11 months or in the presumptive range, Mr. Curc could have received a sentence of nine to 11 months. So Mr. Cromp is arguing as I understand it that a nine to 11 months sentence in the mitigated range is somehow different from a nine to 11 months sentence in the presumptive range when the judge had discretion to impose it under either range. Again, this is not a static system where the mitigated range is completely separate from the presumptive range, which is completely separate from the aggravated range. At the time, Judge Middler. Sorry, I'm sorry to interrupt, but I thought the presumptive range here was 14. That's what I thought. The presumptive range at a maximum was 14

. Curface for the 2008 Breakin and Renner in Convictions was 14 months. The rule that Mr. Cromp would have this court imposed would be to tell the district judges to ignore North Carolina law, which is straightforward under 15A about the discretion and to focus on the actual sentence that was imposed by the state court judge. The actual sentence or the sentence range, I mean, I don't think he's gone that far. I think he's suggesting that if the upper end of the mitigated range for a particular defendant can in no situation result in a sentence of greater than a year, then that's the actual sentence range for that defendant and the federal judge should consider that accordingly. Well, some of the North Carolina ranges, the North Carolina ranges are concurrent sentences. So in the mitigated range, Mr. Curc could have received a sentence of nine to 11 months or in the presumptive range, Mr. Curc could have received a sentence of nine to 11 months. So Mr. Cromp is arguing as I understand it that a nine to 11 months sentence in the mitigated range is somehow different from a nine to 11 months sentence in the presumptive range when the judge had discretion to impose it under either range. Again, this is not a static system where the mitigated range is completely separate from the presumptive range, which is completely separate from the aggravated range. At the time, Judge Middler. Sorry, I'm sorry to interrupt, but I thought the presumptive range here was 14. That's what I thought. The presumptive range at a maximum was 14. Right. Right. So if he'd been sentenced at the presumptive range, we wouldn't be here. That's correct. So I'm not sure I understand what you just said. What, what I believe Mr. Cromp to be arguing with. You don't get, I mean, I'm sorry, you don't get a nine month sentence in North Carolina, right, for anything. The sentence is from X to Y. Correct. And the difference here is between the mitigated range where Y is less than one year and the presumptive range where Y is more than one year. Correct. And that's what drives the outcome of this case. Right. And the Judge chose the mitigated range. Correct

. Right. Right. So if he'd been sentenced at the presumptive range, we wouldn't be here. That's correct. So I'm not sure I understand what you just said. What, what I believe Mr. Cromp to be arguing with. You don't get, I mean, I'm sorry, you don't get a nine month sentence in North Carolina, right, for anything. The sentence is from X to Y. Correct. And the difference here is between the mitigated range where Y is less than one year and the presumptive range where Y is more than one year. Correct. And that's what drives the outcome of this case. Right. And the Judge chose the mitigated range. Correct. And so we're trying to figure out what is the legal effect on the defendant and his culpability under federal law of the judge's decision to circumscribe her discretion and treat Mr. Kerr in the mitigated range. Not the particular sentence she chose, but the range she chose for him, given his record, the offenses, and the mitigating factors. Under 15A, 1340.13, and 15A, 1340.16, up until the time she chose the eight to 10 month sentence, Judge Menofee could have imposed the sentence either in the mitigated range or in the presumptive range, even when she found that the mitigators outweighed any aggravators and that the sentence should come from the presumptive range. Up until the time she said eight to 10, she had the discretion either to impose the sentence in the presumptive range or in the mitigated range. She didn't say eight to 10, she said the mitigated range applies in this case to this defendant. And what the statute say and what the case law says is even when the judge says that, the judge still has the discretion to impose a sentence in the presumptive range. I don't read blivins quite that strongly. The judge didn't say the mitigated range applies in this case. What the judge said in blivins is there is one mitigating factor in no aggravating factor. And therefore the mitigated range is available to me, but I think the sentence should be in the presumptive range. That's what the judge said in blivins. Well, in Cain the judge said a mitigated range, the mitigators outweighed the aggravators and that a mitigated range sentence was justified and then sentenced in the presumptive range anyway. And the court of appeal said that the law does not require a mitigated range sentence when a judge finds that the mitigators outweigh the aggravators, even if a mitigated range sentence is appropriate

. And so we're trying to figure out what is the legal effect on the defendant and his culpability under federal law of the judge's decision to circumscribe her discretion and treat Mr. Kerr in the mitigated range. Not the particular sentence she chose, but the range she chose for him, given his record, the offenses, and the mitigating factors. Under 15A, 1340.13, and 15A, 1340.16, up until the time she chose the eight to 10 month sentence, Judge Menofee could have imposed the sentence either in the mitigated range or in the presumptive range, even when she found that the mitigators outweighed any aggravators and that the sentence should come from the presumptive range. Up until the time she said eight to 10, she had the discretion either to impose the sentence in the presumptive range or in the mitigated range. She didn't say eight to 10, she said the mitigated range applies in this case to this defendant. And what the statute say and what the case law says is even when the judge says that, the judge still has the discretion to impose a sentence in the presumptive range. I don't read blivins quite that strongly. The judge didn't say the mitigated range applies in this case. What the judge said in blivins is there is one mitigating factor in no aggravating factor. And therefore the mitigated range is available to me, but I think the sentence should be in the presumptive range. That's what the judge said in blivins. Well, in Cain the judge said a mitigated range, the mitigators outweighed the aggravators and that a mitigated range sentence was justified and then sentenced in the presumptive range anyway. And the court of appeal said that the law does not require a mitigated range sentence when a judge finds that the mitigators outweigh the aggravators, even if a mitigated range sentence is appropriate. Well, appropriate I think is different from justified, not to cut it too thinly. I think this record supports the conclusion that the judge said the mitigated range applies, that this defendant should be sentenced in the mitigated range. Not that it was justified or not that the mitigated factors outweigh the aggravating factors or that there are no aggravating factors. This judge seems to have clearly chosen the mitigated range. That is what the record in this case shows. In the findings, the determination of aggravators and mitigators, that is what this record shows. The government would contend based on the North Carolina law under 15A and the Cain in the Bivens case that the appropriate ranges of punishment that were eligible for Mr. Carter to be sentenced gave him a maximum sentence of 14 months and unless the court has any questions of court with Rust on the way. I think at one point you were about to talk about the problems that federal courts might face in dealing with a scenario where a state court judge found mitigating factors as you have suggested and nonetheless proceeded to impose a presumptive sentence. And I'm not sure that I followed that because it seems to me that if we agree with Mr. Kerr's rationale, what we look at is the range of sentence, not the actual sentence, but the range of the sentence that a particular defendant was exposed to. Why would that be difficult for a judge to figure out? It's right there on the worksheet. Well, in some cases, as some of the cases that the government cited in the brief, the state court judge found mitigating factors and found that the mitigating factors outweigh the aggravating factors and sentenced in the presumptive range anyway. Right, so the federal judge would look at that presumptive range and decide whether or not in this, in that particular case, the upper end of that presumptive range was in excess of a year. So then that conviction applies for sentencing purposes for enhancement purposes. What's the problem? Well, in cases like the Edmunds case and other cases where it was a nine to 11 month sentence and a judge found mitigators, I can envision a sort of circumstances where a lawyer says, well, this is actually a mitigating range sentence even though it says presumptive range because the judge found that mitigators outweighed aggravators and that this wasn't

. Well, appropriate I think is different from justified, not to cut it too thinly. I think this record supports the conclusion that the judge said the mitigated range applies, that this defendant should be sentenced in the mitigated range. Not that it was justified or not that the mitigated factors outweigh the aggravating factors or that there are no aggravating factors. This judge seems to have clearly chosen the mitigated range. That is what the record in this case shows. In the findings, the determination of aggravators and mitigators, that is what this record shows. The government would contend based on the North Carolina law under 15A and the Cain in the Bivens case that the appropriate ranges of punishment that were eligible for Mr. Carter to be sentenced gave him a maximum sentence of 14 months and unless the court has any questions of court with Rust on the way. I think at one point you were about to talk about the problems that federal courts might face in dealing with a scenario where a state court judge found mitigating factors as you have suggested and nonetheless proceeded to impose a presumptive sentence. And I'm not sure that I followed that because it seems to me that if we agree with Mr. Kerr's rationale, what we look at is the range of sentence, not the actual sentence, but the range of the sentence that a particular defendant was exposed to. Why would that be difficult for a judge to figure out? It's right there on the worksheet. Well, in some cases, as some of the cases that the government cited in the brief, the state court judge found mitigating factors and found that the mitigating factors outweigh the aggravating factors and sentenced in the presumptive range anyway. Right, so the federal judge would look at that presumptive range and decide whether or not in this, in that particular case, the upper end of that presumptive range was in excess of a year. So then that conviction applies for sentencing purposes for enhancement purposes. What's the problem? Well, in cases like the Edmunds case and other cases where it was a nine to 11 month sentence and a judge found mitigators, I can envision a sort of circumstances where a lawyer says, well, this is actually a mitigating range sentence even though it says presumptive range because the judge found that mitigators outweighed aggravators and that this wasn't... Is that something that's not clear on the record or what? Well, even if it says that it's a presumptive range sentence, a nine to 11 month sentence is the top of the mitigated range for sentencing purposes. But why would we credit an argument that's clearly contradicted by the record? Well, if there are mitigated sentences or a mitigated sentence from the mitigated range where mitigating factors are found, I can envision a set of circumstances where a lawyer says, this is actually a mitigated sentence because there were mitigating factors now. I like to mention the kinds of things. The question is whether or not that's reasonable. Well, these are cases where presumptive range sentence were imposed that went to the state court. So, I mean, this is not a hypothetical situation. It has happened numerous times before. Mr. Ray, this is somewhat off point, but I'm hoping you can help me out here. Does North Carolina have a felon disqualification provision? I'm not sure that... A possession of firearm. I'm not sure that I understand the terminology

... Is that something that's not clear on the record or what? Well, even if it says that it's a presumptive range sentence, a nine to 11 month sentence is the top of the mitigated range for sentencing purposes. But why would we credit an argument that's clearly contradicted by the record? Well, if there are mitigated sentences or a mitigated sentence from the mitigated range where mitigating factors are found, I can envision a set of circumstances where a lawyer says, this is actually a mitigated sentence because there were mitigating factors now. I like to mention the kinds of things. The question is whether or not that's reasonable. Well, these are cases where presumptive range sentence were imposed that went to the state court. So, I mean, this is not a hypothetical situation. It has happened numerous times before. Mr. Ray, this is somewhat off point, but I'm hoping you can help me out here. Does North Carolina have a felon disqualification provision? I'm not sure that... A possession of firearm. I'm not sure that I understand the terminology. In other words, 922G says under federal law, if you're convicted state or federal court of an offense punishable by more than one year, you can't possess firearm. That's what I mean by felon disqualification. Does North Carolina have an analogous state? Like a firearm by felon state charges? Yes, yes, are. And I'm just curious, if a person sentenced in a mitigated range as here eight to 10 months, how does the state law apply to that person? It would apply to any felony under North Carolina law. Well, the question is, is that a felony? If a person is sentenced at a mitigated range eight to 10 months, is that person disqualified by a prohibited person under state law? Yes. And what's the rationale for that? That it's a felony under North Carolina law? I see. So the definition of a felony under North Carolina law is not a sentence punishable by more than one year. That's correct. What is the... It's just a statutory term. A statutory term. Okay, I understand that. In Maryland, we have like four year felonies, or four year misdemeanors, I should say. But of course, under federal law, they would all be misdemeanors

. In other words, 922G says under federal law, if you're convicted state or federal court of an offense punishable by more than one year, you can't possess firearm. That's what I mean by felon disqualification. Does North Carolina have an analogous state? Like a firearm by felon state charges? Yes, yes, are. And I'm just curious, if a person sentenced in a mitigated range as here eight to 10 months, how does the state law apply to that person? It would apply to any felony under North Carolina law. Well, the question is, is that a felony? If a person is sentenced at a mitigated range eight to 10 months, is that person disqualified by a prohibited person under state law? Yes. And what's the rationale for that? That it's a felony under North Carolina law? I see. So the definition of a felony under North Carolina law is not a sentence punishable by more than one year. That's correct. What is the... It's just a statutory term. A statutory term. Okay, I understand that. In Maryland, we have like four year felonies, or four year misdemeanors, I should say. But of course, under federal law, they would all be misdemeanors. They would all be felonies, because it's driven by the length of the potential sentence. And that's... Only the only misdemeanor in a North Carolina law, North Carolina law like that is driving along a pair, where you can... Everything else is a felony. Up to two months. Everything else is a felony in North Carolina. But any felony would count under that kind of... Okay, and what is a felony in North Carolina is what the legislature says is a felony. Correct. I see

. They would all be felonies, because it's driven by the length of the potential sentence. And that's... Only the only misdemeanor in a North Carolina law, North Carolina law like that is driving along a pair, where you can... Everything else is a felony. Up to two months. Everything else is a felony in North Carolina. But any felony would count under that kind of... Okay, and what is a felony in North Carolina is what the legislature says is a felony. Correct. I see. I'm not surprised. Thank you, Mr. Rand. Thank you very much. Mr. Crump, you've got some time on the rebuttal. Thank you, Your Honor. The case cited by the government, Mr. Rand, the Cain case, that case is a pre-act case. In other words, it precedes the structure since then. I think it was the... I think North Carolina at that time had the fair sense in that and had the..

. I'm not surprised. Thank you, Mr. Rand. Thank you very much. Mr. Crump, you've got some time on the rebuttal. Thank you, Your Honor. The case cited by the government, Mr. Rand, the Cain case, that case is a pre-act case. In other words, it precedes the structure since then. I think it was the... I think North Carolina at that time had the fair sense in that and had the... You know, it had presumed a sense, but you didn't have the structure sense. So it wouldn't carry the weight, whatever weight, that Bivens it would carry. Norman Curl asked this honorable court to extend its reasoning in semblance between the aggravated and the presumptive range of suppulsions in his case to the mitigate range of punishment. Norman Curl asked this court to defer to the state of North Carolina as to the seriousness of the offense that the maximum of the mitigate range of punishment was the maximum sense Norman Curl could have received for his no-con convictions. Thank you. Mr. Crump, we note that you are court appointed and we want to thank you for agreeing to serve in that role. And we hope the Congress will enable us to pay you on a timely basis. Well, it's a privilege to be up here. We couldn't do our work if it weren't folks like you who agreed to serve on the court appointed list. Thank you so much. Thank you. We will come down in Greek camp.

Good morning and welcome to the fourth circuit. We're prepared to hear argument on our first case, 12-4775, the United States first is Kerr. Mr. Crump, we'll be glad to hear from you. Mr. Crump, before you begin, let me just suggest that the supplemental briefing that we had the parties do may have led you all down some rabbit trails. We don't necessarily need to go down, which is our fault not yours. So you might begin with directly addressing the Simmons factors, the application of Simmons by reason of the offense level, the criminal history, and whether they're findings of aggregation. The exact test that was set out in Simmons, because depending upon the resolution of that question, the other items on the mandate and ineffective assistance of council or whatnot might not be quite as important. So I didn't want you all to use all your time on that and skip over the main meat, so to speak. Thank you, John, and good morning to this honorable cohort. Norman Carl contains it for federal criminal law purposes on the Northclifestrucher Sense Nath, a sense which is imposed for a particular offense, for a particular prior record level, in the mitigate range of punishment, is for an offense, which is different than an offense in the aggravated range of punishment, or the presumptive range of punishment. And the core of Norman Carl's argument is that he could not have been sentenced before he was convicted. That 18, 92, 2G1 prescribes a conviction for a crime punishable by more than one year. He could not have been sentenced in North Carolina before he was convicted, and he could not have been convicted before the honorable State District Court judge found the sense and range. Obviously, he had to find the offense class, the prior record level, but he had also to find the range of punishment before he was convicted. Once he was convicted, then his exposure began. And an analogy that Norman Carl might make, a little bit different would be to our federal system, rule 11 colloquy, and defend its stance in front of the District Court judge, and goes to a lengthy, 20, 30 minute colloquy, the judge fires that the police, frequently voluntarily made, it sets the plea. Then there's a factual basis, and there's a deficiency in the factual basis, and since it's deferred, or it's the sense of the police deferred to the sense of the factual basis, in that federal case, the defendant hadn't been convicted. Even though his plea is freely and voluntarily made, he hasn't been convicted until that judge finds their factual basis to sports plea. But in Simmons, the court said that resolving the question of the applicability of the range of punishment for the actual defendant, not a hypothetical defendant, actual defendant, requires the examination of three pieces of evidence, the offense class, the prior record level, and the applicability of the aggravated sentencing range. And I don't think any of those are an issue in this case. Is that correct? There is an issue, Your Honor. The issue is what is meant by that footnote nine by aggravated sentencing range. Don MacCara continues. I aggravated what the meat mitigated, was it? We were contending, it does mean mitigated. That the word aggravated means, is it the presumptive range of punishment? Is it the mitigated range of punishment? Or is it aggravated? Otherwise, that range, we say aggravated range of punishment, there has to be a difference to the state judge to make a determination as to the level of aggravation. So there's three factors, the prior record criminal history and then the level, the sentencing range, and that would be, when the court says, aggravation is sentencing range, it's a court just took that literal, and not in the spirit of the law, then that would eliminate the presumptive range and you just go with proof it. Well, the footnote actually says the applicability of the aggravated sentencing range. And I guess you're saying that, whether or not that sentencing range applies, is for the judge to decide. That's great, John. Well, but with respect to aggravation anyway, as to the factors in North Carolina, most all of those factors are now for a jury to decide in the first instance, and then the judge decides whether or not they're mitigating circumstances and then ways those circumstances in deciding whether or not to impose a mitigated sentence. But all of that is in the judge's discretion. And we're no longer in this case, in my mind anyway, dealing with a theoretical defendant because we have a defendant that fact is subject to a sentence in excess of one year if the judge in his discretion decides to impose it. So what the Simmons have to do with this case? Well, Simmons says, it says that this is a legislative mandate. It's not a guideline system. And for each felony offense, there are 18 specific ranges, 18 offenses. So in this particular case, for belongs breaking injury, class H, prior left before, there would be three separate offenses. Well, I mean, three separate ranges of punishment for the same offense. I'm not sure I buy that they're three separate offenses. The defendant has been convicted of an offense. The question is, where in that table is the judge ultimately going to land? And it seems to me that if the judge has discretion to decide whether or not to impose a sentence in excess of one year, then we are no longer dealing with a theoretical worst case scenario defendant that Simmons was talking about. You know, the judge does not have, we respectfully take issue, that the judge's discretion, the judge has discretion as to the, to the punishment range. But once the judge exercises that discretion and finds that the fact that it's a mitigation outweigh the aggravation, the fact that it's an aggravation, and that the mitigation range of punishment is appropriate. Then that judge's discretion has been circumscribed by the legislature, and she can't give more than 11 months. Let me ask you this. You know, I suppose that's a rule we could, a holding we could impose in this case. But I don't think it's fair to say that that's what Simmons dictates as a matter of law, given the facts and Simmons. Do you agree with that? Your honor. I don't think a yes answer to Judge Dias hurt you. It may not be the answer you prefer, but I don't think it hurts you. Can I give a yes answer to explain? Certainly. All I'm saying is if you want us to go down that route, Simmons is not the vehicle. It doesn't really dictate the result in this case. Is that fair? I mean, I, I, I, Simmons does not mandate, but such a rule would be perfectly consistent with that. But the rule would be consistent, and Simmons did make a distinction between that aggravated range of punishment and the presumptu range of punishment. And Simmons correctly would say that the aggravated range is a different offense. Presumptu range is a different offense. And what Carl would ask this court to do is it's stand the logic to this narrow range of cases and make Simmons perfectly logical that the mitigated range of punishment is also a specific distinct offense. Well, it really be a narrow range though, because you tell me where I'm off base here, if this is not your position. But it seems to me your position now is that even though the judge has the discretion with a specific defendant based on that defendant's criminal history and offense level, even though the judge by statute in North Carolina has the discretion to sentence them to a sentence in excess of 12 months. If they in fact impose a sentence in a range that does not exceed the 12 months, it is the fact of the actual sentence imposed that determines whether or not there either sentenced under the armed career criminal, guideline, or whether they would in fact have been guilty as a felon for possessing a firearm. You know, that is not how Carl, the characterized the judge is discretion. But you tell us what the rule would be if we ruled in your favor in this case, because it's not just going to apply to you, it will apply to a lot of other people. Well, it's just like, no, nine, it's very simple. In turn, a crime is punishable, the act, rather than 12 months. Look at the judgment, look at the first page of the judgment. See the offense class, the prior record level, and the record of aggravation. And in this particular case, so it would depend upon the level in which the judge chose to exercise his or her discretion to sentence. That's great, that's great. It's not a guideline system like prior level four, from a minimum of seven months to say, well, over 14. The minimum in the mitigate range is seven, the maximum in the present, if I know it's 14, I don't know what the maximum in the aggravation is. But the judge's discretion is not a guideline system. The judge's discretion is to determine the range of punishment. And the legislature just has a mandated system. It's the determinant since statute. It's not like the authority of a federal judge. It's so circumscribed that her authority is just determined the range. But once she determines the range, she has that discretion. But once she... So it would be the basis, that in view of your answers to Judge Diaz's question, that Simmons does not require that result. What would be the basis that you would give us for making that holding? This is the new rule. What's the basis for that? You honor Norman Carl contend that the statements and semis about the 18 offense levels, that would be dictum, that wasn't necessary. The court could have just said, it's determined based on prior criminal record and offense class. But the court distinguished those 18 offense levels. And it went to links to the distinguished between the aggravated range and the presumptive range. And then the court, it's a horrible court, went on in Powell and in Miller to reaffirm that in addition to the offense class prior record level, there's a third factor and that's the aggravated range of punishment. And Carl does take aggravated range of punishment to mean the three ranges, not just the top range. You've got some more talent, if you want to use it. This is it. One more statement, brief statement, just practical. The state judge gave Norman Carl a sense when he ate my minimal. A sense in the presumptive range has a memo of sentence and I'm up. If he was convicted of an offense, the presumptive range, what the judge could have chosen, but she didn't choose it. And eight months since went authorized and the Senate's had. I think the government concedes that he was actually sentenced in the mitigated range. Oh yes. There's no dispute about that. The question is, what is the effect of the judge's decision on his, on the consequence, what are the consequences from that on the federal statue? Has he been convicted of a crime punishable by more than one year? And your argument is that he has not. That's right. Because the judge constrained her discretion by choosing to sentence in the mitigated range. That's right, John. And to rule otherwise, simply returns to heart. Is that your argument? How, if we rule that the presumptive range, just because the judge has discretion to sentence in the presumptive range, even though the judge has exercised her discretion before it by statute, not to do that. How is that different from our prior precedent in harp? Because in harp, we said, well, judge could sentence as if the person is the most felonious at the highest aggravating level. And Simmons took all of that away. And so is that your argument that basically? Yes, you are. Assistant with Simmons is to look at what the judge actually does to this actual defendant. This judge didn't think this person was the kind of serious person who deserves 15 years in federal prison based on the record that was presented to her. All of our cases talk about, not all of them, but many of our cases talk about what Congress was after under the Armed Career Criminal Act. What Congress was after in 922-G1, fell in impossession. Well, this judge, this North Carolina judge, has told us as clearly as possible, this is not the person that Congress is interested in. The US attorney may be interested in him, but Congress wasn't interested in this person. Because North Carolina law doesn't treat him as that kind of person. You've got some more time for the bottle. Thank you, Your Honor. Thank you. Mr. Ran, will we be glad to hear from you? Good morning, mate. Please court, roughly ran for the government. What's the answer to Judge Davis' question? Is this a defendant that is barred from being treated as someone who, in fact, was eligible for a sentence of greater than a year? The government would contend, based on North Carolina statutory law, North Carolina case law, and this court's decision in Simmons, that Mr. Kerr was eligible to be punished by more than a year for his. Judge Davis says we're going back to Harp. Why is Harp different than this case? Harp is different from this case because, in Harp, this court looked at the absolute maximum sentence that any defendant could receive under North Carolina law to determine what the maximum punishment was. Even if, in fact, that particular defendant could not receive that sentence. That's correct. In this case, Mr. Kerr, the government would contend, was eligible to receive a sentence of more than a year, based on both the North Carolina statutes and the North Carolina case law, interpreting those statutes. In creating the three different ranges of structured sentencing which is authorized under 15A, 1340.17, the general assembly did not create a wall between each of those ranges. It created a door on each of those ranges, pursuant to which the judge could move up or down in an exercise of his or her discretion. In 15A, 1340.13E, the statute reads that the court may deviate from the presumptive range when a judge finds both aggravators and or mitigators and determines that the aggravated or mitigated range may apply. In 15A, 1340.16B, the general assembly said that the court may depart from the presumptive range if aggravators and mitigators apply and may impose a sentence in the mitigated range. And the case law, in the cane case, in the biven's case, in the Norris case, the North Carolina courts have said that even when a judge finds that mitigators outweigh aggravators or aggravators outweigh mitigators either way, and finds that a mitigated range sentence is appropriate, that judge still has the discretion to sentence within the presumptive range irrespective of the findings. No dispute about any of that. And here we have a judge who said this guy doesn't get more than one year. That's correct. And so the question, I think it's fairly straightforward, is it consistent with Simmons to rule your way in favor of the government or is it consistent with Simmons to rule in favor of the defendant here? Well, we agree. There's no question the judge has question. You just said it yourself. The judge can go to aggravate it, the judge can remain in presumptive, the judge can go to mitigate it, the judge can make mitigation findings and still go to presumptive. But here on this defendant, given his record, a real judge with a real defendant in front of her said this guy gets no more than 11 months. So which is more consistent with Simmons? The government would contend that consistent with Simmons and the North Carolina law, that the maximum punishment that Mr. Kerr could have received up until the time that the judge imposed the actual sentence was 14 months. A Mr. Chair, I know what you mean by up until the time the judge imposed the actual sentence. The government disagrees with Mr. Cromp that the exercise of discretion is complete once the judge chooses the sentence in range. Under the statutes under 15A, the government would contend that the exercise of discretion is complete once the judge chooses the actual sentence that in exercising his or her discretion, the judge doesn't just choose a range, the judge chooses an actual sentence. And at the right before the moment when the judge chooses the actual sentence, Mr. Kerr is eligible to receive a sentence from anywhere from seven months at a minimum to 14 months at a maximum. But if the judge says I'm going to sentence from the mitigated range and the upper end of that mitigated range does not allow for a sentence of greater than a year, then hasn't he then circumscribed his discretion and actually dictated what the appropriate range is going to be? Well, in Simmons at page 244, this court said, we do not rely on the structured sensing act to decrease the maximum term of imprisonment but to establish the maximum term of imprisonment. But I think that's what Judge D. I has just asked you. You say, and I understand the argument, you say until the judge imposed a sentence, everybody's in the dark. In fact, you seem to be suggesting even the judges in the dark until the judge pronounced a sentence. But in fact, the judge presumably will say, some judges certainly many judges will say, I'm going to sentence in the mitigated range. Judge could say that on the record and thereby announce to the whole world, including the North Carolina legislature, I've now bound myself. So I'm not sure it's true that everybody's in the dark including the judge until the judge actually imposed a sentence. I think the judge knows full well what she's going to do when she makes the determination as she did here, this defendant will be sentenced in the mitigated range. Now, whether the judge actually announced that on the record, of course we don't know, we don't have a transcript, do we? Not that I'm aware of. Right, we don't have a transcript. But certainly many judges in both state and federal court say things like that every day. And then they turn to counsel and they say, you know, in fact, in federal court, the judge is almost mandated to declare, as you well know, what the guidelines are before the judge entertains allocution from the parties. So I'm not sure it's persuasive to say the judge is in the dark about what the sentence is going to be, how she's going to exercise her discretion until she actually selects a range. Well, both the cane and the Biven's case, in both of those cases and in numerous other cases that the government cited in the brief, the judges found that the mitigators outweigh the aggravators or the aggravators outweigh the mitigator. Yeah, Biven's the judge found one mitigator. And then the judge said, despite that, this guy belongs in the presumptive. Correct. And so that is consistent with North Carolina law, which says that the judge has the discretion even when a judge finds that a mitigator outweighs any aggravators or vice versa, to sentence within the presumptive range or within any range that is available to the judge based on the judge's findings. What, under Simmons is anything else necessary besides that? The government would continue to know that under the three factors, I agree with Mr. Cromp that under note nine in Simmons that the three factors are the offense level, the criminal record and the availability of the aggravated range. The aggravated range is not an issue here and so the maximum sentence that Mr. Curface for the 2008 Breakin and Renner in Convictions was 14 months. The rule that Mr. Cromp would have this court imposed would be to tell the district judges to ignore North Carolina law, which is straightforward under 15A about the discretion and to focus on the actual sentence that was imposed by the state court judge. The actual sentence or the sentence range, I mean, I don't think he's gone that far. I think he's suggesting that if the upper end of the mitigated range for a particular defendant can in no situation result in a sentence of greater than a year, then that's the actual sentence range for that defendant and the federal judge should consider that accordingly. Well, some of the North Carolina ranges, the North Carolina ranges are concurrent sentences. So in the mitigated range, Mr. Curc could have received a sentence of nine to 11 months or in the presumptive range, Mr. Curc could have received a sentence of nine to 11 months. So Mr. Cromp is arguing as I understand it that a nine to 11 months sentence in the mitigated range is somehow different from a nine to 11 months sentence in the presumptive range when the judge had discretion to impose it under either range. Again, this is not a static system where the mitigated range is completely separate from the presumptive range, which is completely separate from the aggravated range. At the time, Judge Middler. Sorry, I'm sorry to interrupt, but I thought the presumptive range here was 14. That's what I thought. The presumptive range at a maximum was 14. Right. Right. So if he'd been sentenced at the presumptive range, we wouldn't be here. That's correct. So I'm not sure I understand what you just said. What, what I believe Mr. Cromp to be arguing with. You don't get, I mean, I'm sorry, you don't get a nine month sentence in North Carolina, right, for anything. The sentence is from X to Y. Correct. And the difference here is between the mitigated range where Y is less than one year and the presumptive range where Y is more than one year. Correct. And that's what drives the outcome of this case. Right. And the Judge chose the mitigated range. Correct. And so we're trying to figure out what is the legal effect on the defendant and his culpability under federal law of the judge's decision to circumscribe her discretion and treat Mr. Kerr in the mitigated range. Not the particular sentence she chose, but the range she chose for him, given his record, the offenses, and the mitigating factors. Under 15A, 1340.13, and 15A, 1340.16, up until the time she chose the eight to 10 month sentence, Judge Menofee could have imposed the sentence either in the mitigated range or in the presumptive range, even when she found that the mitigators outweighed any aggravators and that the sentence should come from the presumptive range. Up until the time she said eight to 10, she had the discretion either to impose the sentence in the presumptive range or in the mitigated range. She didn't say eight to 10, she said the mitigated range applies in this case to this defendant. And what the statute say and what the case law says is even when the judge says that, the judge still has the discretion to impose a sentence in the presumptive range. I don't read blivins quite that strongly. The judge didn't say the mitigated range applies in this case. What the judge said in blivins is there is one mitigating factor in no aggravating factor. And therefore the mitigated range is available to me, but I think the sentence should be in the presumptive range. That's what the judge said in blivins. Well, in Cain the judge said a mitigated range, the mitigators outweighed the aggravators and that a mitigated range sentence was justified and then sentenced in the presumptive range anyway. And the court of appeal said that the law does not require a mitigated range sentence when a judge finds that the mitigators outweigh the aggravators, even if a mitigated range sentence is appropriate. Well, appropriate I think is different from justified, not to cut it too thinly. I think this record supports the conclusion that the judge said the mitigated range applies, that this defendant should be sentenced in the mitigated range. Not that it was justified or not that the mitigated factors outweigh the aggravating factors or that there are no aggravating factors. This judge seems to have clearly chosen the mitigated range. That is what the record in this case shows. In the findings, the determination of aggravators and mitigators, that is what this record shows. The government would contend based on the North Carolina law under 15A and the Cain in the Bivens case that the appropriate ranges of punishment that were eligible for Mr. Carter to be sentenced gave him a maximum sentence of 14 months and unless the court has any questions of court with Rust on the way. I think at one point you were about to talk about the problems that federal courts might face in dealing with a scenario where a state court judge found mitigating factors as you have suggested and nonetheless proceeded to impose a presumptive sentence. And I'm not sure that I followed that because it seems to me that if we agree with Mr. Kerr's rationale, what we look at is the range of sentence, not the actual sentence, but the range of the sentence that a particular defendant was exposed to. Why would that be difficult for a judge to figure out? It's right there on the worksheet. Well, in some cases, as some of the cases that the government cited in the brief, the state court judge found mitigating factors and found that the mitigating factors outweigh the aggravating factors and sentenced in the presumptive range anyway. Right, so the federal judge would look at that presumptive range and decide whether or not in this, in that particular case, the upper end of that presumptive range was in excess of a year. So then that conviction applies for sentencing purposes for enhancement purposes. What's the problem? Well, in cases like the Edmunds case and other cases where it was a nine to 11 month sentence and a judge found mitigators, I can envision a sort of circumstances where a lawyer says, well, this is actually a mitigating range sentence even though it says presumptive range because the judge found that mitigators outweighed aggravators and that this wasn't... Is that something that's not clear on the record or what? Well, even if it says that it's a presumptive range sentence, a nine to 11 month sentence is the top of the mitigated range for sentencing purposes. But why would we credit an argument that's clearly contradicted by the record? Well, if there are mitigated sentences or a mitigated sentence from the mitigated range where mitigating factors are found, I can envision a set of circumstances where a lawyer says, this is actually a mitigated sentence because there were mitigating factors now. I like to mention the kinds of things. The question is whether or not that's reasonable. Well, these are cases where presumptive range sentence were imposed that went to the state court. So, I mean, this is not a hypothetical situation. It has happened numerous times before. Mr. Ray, this is somewhat off point, but I'm hoping you can help me out here. Does North Carolina have a felon disqualification provision? I'm not sure that... A possession of firearm. I'm not sure that I understand the terminology. In other words, 922G says under federal law, if you're convicted state or federal court of an offense punishable by more than one year, you can't possess firearm. That's what I mean by felon disqualification. Does North Carolina have an analogous state? Like a firearm by felon state charges? Yes, yes, are. And I'm just curious, if a person sentenced in a mitigated range as here eight to 10 months, how does the state law apply to that person? It would apply to any felony under North Carolina law. Well, the question is, is that a felony? If a person is sentenced at a mitigated range eight to 10 months, is that person disqualified by a prohibited person under state law? Yes. And what's the rationale for that? That it's a felony under North Carolina law? I see. So the definition of a felony under North Carolina law is not a sentence punishable by more than one year. That's correct. What is the... It's just a statutory term. A statutory term. Okay, I understand that. In Maryland, we have like four year felonies, or four year misdemeanors, I should say. But of course, under federal law, they would all be misdemeanors. They would all be felonies, because it's driven by the length of the potential sentence. And that's... Only the only misdemeanor in a North Carolina law, North Carolina law like that is driving along a pair, where you can... Everything else is a felony. Up to two months. Everything else is a felony in North Carolina. But any felony would count under that kind of... Okay, and what is a felony in North Carolina is what the legislature says is a felony. Correct. I see. I'm not surprised. Thank you, Mr. Rand. Thank you very much. Mr. Crump, you've got some time on the rebuttal. Thank you, Your Honor. The case cited by the government, Mr. Rand, the Cain case, that case is a pre-act case. In other words, it precedes the structure since then. I think it was the... I think North Carolina at that time had the fair sense in that and had the... You know, it had presumed a sense, but you didn't have the structure sense. So it wouldn't carry the weight, whatever weight, that Bivens it would carry. Norman Curl asked this honorable court to extend its reasoning in semblance between the aggravated and the presumptive range of suppulsions in his case to the mitigate range of punishment. Norman Curl asked this court to defer to the state of North Carolina as to the seriousness of the offense that the maximum of the mitigate range of punishment was the maximum sense Norman Curl could have received for his no-con convictions. Thank you. Mr. Crump, we note that you are court appointed and we want to thank you for agreeing to serve in that role. And we hope the Congress will enable us to pay you on a timely basis. Well, it's a privilege to be up here. We couldn't do our work if it weren't folks like you who agreed to serve on the court appointed list. Thank you so much. Thank you. We will come down in Greek camp