United States of America v.  Tamara Lenise Martin

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4391 
TAMARA LENISE MARTIN,
Defendant-Appellant. 
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-02-337)
Argued: June 2, 2004
Decided: August 5, 2004
Before MOTZ and KING, Circuit Judges, and
David R. HANSEN, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge King joined. Senior Judge Hansen wrote a separate opin-
ion concurring in the judgment and joining in the opinion except as
to Part IV.
COUNSEL
ARGUED: Linda Jayne Stowers, Winston-Salem, North Carolina, for
Appellant. Randall Stuart Galyon, Assistant United States Attorney,

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OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee. ON BRIEF: Anna Mills Wagoner,
United States Attorney, Greensboro, North Carolina, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Tamara Lenise Martin appeals the district court’s calculation of her
criminal history category. She contends that the court erred in includ-
ing a prior state sentence for misdemeanor larceny, which had been
imposed by a North Carolina district court, and was being considered
de novo by a North Carolina superior court at the time of the federal
sentencing. Because execution of the state sentence was stayed pend-
ing the trial de novo, the district court erred in attributing two crimi-
nal history points to that prior sentence pursuant to U.S. Sentencing
Guidelines Manual § 4A1.1(b) (2002); rather, it should have assessed
only one criminal history point under § 4A1.1(c). However, because
this error was harmless, we affirm.
I.
On December 4, 2002, Martin pleaded guilty in federal court to
bank robbery, in violation of 18 U.S.C. § 2113(a) (2000). In calculat-
ing its sentencing recommendation for Martin, the Probation Office
prepared a presentence report in which it assigned her five criminal
history points. Two of these points were attributable to the prior sen-
tence of a North Carolina district court for misdemeanor larceny. In
that case, Martin had originally been charged with "Felonious Lar-
ceny by an Employee," but on December 6, 2002, Martin pleaded
guilty in a North Carolina district court to misdemeanor larceny and
was sentenced to sixty days imprisonment. The record does not dis-
close whether Martin served any portion of that sentence.
Within ten days, Martin exercised her statutory right to trial de
novo in the state case by filing a timely notice of appeal to a North
Carolina superior court. The case was still pending in superior court
when the Probation Office prepared its presentence report in Martin’s
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federal case and remained pending at the time of sentencing.
(Approximately a month after sentencing, the State dismissed the mis-
demeanor larceny charge "with leave" because Martin failed to appear
for the superior court criminal proceeding. Thus, although a basis for
her federal sentence, Martin has no conviction or sentence for misde-
meanor larceny under North Carolina law.)
At sentencing in the case at hand, Martin objected to the presen-
tence report, contending that the Probation Office improperly
included the sentence attributable to her state misdemeanor larceny
conviction in calculating her criminal history category. She argued
that the Sentencing Guidelines did not contemplate an "appeal" from
a lower trial court to a superior trial court for a trial de novo, and that
under North Carolina law, once a defendant exercises her right to a
trial de novo, the lower court conviction becomes a nullity for all pur-
poses. Although the district court found Martin’s argument "interest-
ing," it ultimately chose to adopt the calculation recommended in the
presentence report.
So with five criminal history points, Martin was categorized as a
Category III offender, and with an offense level of twenty-two, her
applicable guideline range was fifty-one to sixty-three months impris-
onment. U.S.S.G. ch. 5, pt. A. The district court imposed a sentence
of fifty-two months imprisonment.
II.
The question before us is whether a prior sentence imposed by a
North Carolina district court pending a trial de novo in a North Caro-
lina superior court qualifies as a "prior sentence of imprisonment"
under the United States Sentencing Guidelines. U.S.S.G. § 4A1.1(b).
Before turning to that question, we must first understand how the
North Carolina criminal trial system operates.
North Carolina, like many other states, has a "two-tier" system of
trial courts for some criminal offenses.1 Specifically, all crimes classi-
1In addition to North Carolina, approximately half of the states appear
to employ some type of two-tier system. See Colten v. Kentucky, 407
U.S. 104, 112 n.4 (1972); David A. Harris, Justice Rationed in the Pur-
suit of Efficiency: De Novo Trials in the Criminal Courts, 24 Conn. L.
Rev. 381, 382-83 (1992).
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fied as misdemeanors under North Carolina law are subject to a man-
datory two-tier system consisting of district courts ("first tier") and
superior courts ("second tier"). See N.C. Gen. Stat. §§ 7A-271, 7A-
272(a) (2003). Thus, the State must prosecute all misdemeanors in a
state district court in the first instance, and a defendant cannot bypass
this district court prosecution. See State v. Martin, 387 S.E.2d 211,
213 (N.C. Ct. App. 1990).
In district court, defendants must either plead guilty or submit to
a bench trial. Cf. N.C. Gen. Stat. § 7A-196(b) ("[T]here shall be no
jury trials in the district court."). If a defendant is acquitted, all crimi-
nal proceedings are terminated. See State v. Harrell, 183 S.E.2d 638,
639-40 (N.C. 1971). If, on the other hand, a defendant either pleads
guilty or is convicted after a bench trial, she has an absolute right to
"appeal" to a superior court and receive a trial de novo with a jury.
N.C. Gen. Stat. § 15A-1431(b); State v. Sparrow, 173 S.E.2d 897, 902
(N.C. 1970). A trial de novo in a superior court is the defendant’s only
option; North Carolina law provides no avenue for appellate review
of the proceedings of a state district court. State v. Golden, 251 S.E.2d
875, 877 (N.C. Ct. App. 1979).
If a defendant chooses to file a "notice of appeal" with a superior
court, the district court conviction is automatically nullified for most
purposes. Sparrow, 173 S.E.2d at 902 (explaining that a district court
judgment is "completely annulled"); see also Blackledge v. Perry, 417
U.S. 21, 22 (1974) (explaining that under the North Carolina statutory
scheme, "[w]hen an appeal is taken, . . . the slate is wiped clean; the
prior conviction is annulled, and the prosecution and the defense
begin anew in the Superior Court"). As for the corresponding sen-
tence, the appeal "stays the execution of portions of the judgment
relating to fine and costs . . . [and] portions of the judgment relating
to confinement when the defendant has complied with conditions of
pretrial release." N.C. Gen. Stat. § 15A-1431(f). If a defendant with-
draws her appeal, a superior court will remand the case to the district
court to execute the district court judgment. § 15A-1431(g), (h).
In superior court, the defendant is entitled to a trial de novo, with-
out incurring any prejudice, or even effect, from the district court pro-
ceeding. See § 15A-1431(b); State v. Thompson, 163 S.E.2d 410, 412
(N.C. Ct. App. 1968); cf. State v. Ferrell, 330 S.E.2d 225, 226-27
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(N.C. Ct. App. 1985) (holding that a superior court "committed preju-
dicial error by permitting the State to question the defendant regard-
ing his failure to testify in the district court trial") (internal quotation
marks omitted). A defendant need not demonstrate error in the district
court, nor may a superior court give the judgment of a district court
any weight. See Sparrow, 173 S.E.2d at 902 ("When an appeal of
right is taken to the Superior Court, in contemplation of law it is as
if the case had been brought there originally and there had been no
previous trial."); see also Blackledge, 417 U.S. at 22. A superior court
likewise is in no way bound by the sentence imposed by a district
court, and is free to impose what punishment it sees fit. Sparrow, 173
S.E.2d at 903. Similarly, the State is not bound by any plea agreement
reached in district court and is permitted to pursue the original
charges, even if they represent a felony offense. N.C. Gen. Stat.
§§ 7A-271(b), 15A-1431(b); State v. Fox, 239 S.E.2d 471, 473 (N.C.
Ct. App. 1977).
The purpose of the two-tier system is to "provide[ ] simple and
speedy trials of misdemeanor cases in the District Court." State v.
Smith, 323 S.E.2d 316, 329 (N.C. 1984). To achieve such efficiency,
district courts do not supply the same safeguards available in superior
courts. For example, North Carolina district courts do not afford
defendants the right to a jury trial, N.C. Gen. Stat. § 7A-196(b), while
all defendants, regardless of the severity of their crimes, are entitled
to a twelve-person jury trial in superior court, § 15A-1201. Moreover,
North Carolina district courts do not engage in formal plea colloquies
prior to accepting guilty pleas, N.C. Gen. Stat. art. 58, official cmt.
("[I]t is clearly expected the [guilty plea] process should be less for-
mal and not subject to the procedural restrictions placed upon pleas
of guilty or no contest in superior court."); whereas, superior courts
must comply with statutorily-mandated procedures to ensure pleas are
knowing and voluntary, see § 15A-1022. And, unlike superior courts,
North Carolina district courts are not courts of record and there is no
avenue for appellate review of their judgments. Sparrow, 173 S.E.2d
at 903; see Golden, 251 S.E.2d at 877.
With this understanding of the two-tiered North Carolina system in
mind, the details of which are undisputed, we turn to the sentence at
issue here.
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III.
Section 4A1.1(b) of the United States Sentencing Guidelines
instructs a sentencing court to "[a]dd 2 points for each prior sentence
of imprisonment of at least sixty days" and not exceeding one year
and one month. U.S.S.G. § 4A1.1(b). Section 4A1.2(a)(1) defines a
"prior sentence" as one "previously imposed upon adjudication of
guilt, whether by guilty plea, trial, or plea of nolo contendere, for con-
duct not part of the instant offense." U.S.S.G. § 4A1.2(a)(1). Section
4A1.2 also directly addresses various dispositions, and specifies
when, and if, a sentencing court should include sentences arising from
such dispositions in a defendant’s criminal history calculation. See,
e.g., § 4A1.2(d), (f)-(j), (l). In a comment to this provision, the Sen-
tencing Commission admonishes that "prior sentences, not otherwise
excluded, are to be counted in the criminal history score." U.S.S.G.
§ 4A1.2, cmt. background.
A.
The Guidelines do not specifically address dispositions arising
from a two-tier criminal trial system like that employed by North Car-
olina and other states. Perhaps because of this omission, both the
Government and Martin strive to force Martin’s sentence into one of
the categories that § 4A1.2 does expressly address. On the one hand,
the Government argues that § 4A1.2(l), which provides that "[p]rior
sentences under appeal are counted except as expressly provided
below," controls the case at hand. On the other, Martin contends that
her sentence is covered under § 4A1.2, cmt. n.6, which excludes cer-
tain reversed or vacated convictions. Neither of these categories, how-
ever, adequately describes the sentence at issue here.
Although North Carolina law refers to the request for a trial de
novo in the superior court as an "appeal," see N.C. Gen. Stat. § 15A-
1431, the term "appeal" is a misnomer. Black’s Law Dictionary
defines an "appeal" as a "[r]esort to a superior (i.e. appellate) court
to review the decision of an inferior (i.e. trial) court or administrative
agency." Black’s Law Dictionary 96 (6th ed. 1990). But in "appeal-
ing" from the North Carolina district court to superior court, Martin
did not seek (and indeed could not seek) review of the district court
proceeding or disposition; rather, she requested (and was only entitled
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to request), a trial de novo irrespective of the proceedings or disposi-
tion in the "inferior" court. See ante at 4-5. Thus, despite the state
nomenclature assigned to the mechanism triggering a new trial (which
the Government properly recognizes does not control here), it is
clearly not, as the Supreme Court has recognized in similar circum-
stances, a true "appeal." See Colten, 407 U.S. at 115 (recognizing that
under Kentucky’s two-tier scheme "the ‘appeal’ is in reality a trial de
novo").
Martin’s contention that her conviction was "vacated," and thus
should be excluded under § 4A1.2, cmt. n.6, must also be rejected. As
an initial matter, Martin’s conviction was not technically "vacated" as
that term is commonly understood. "Vacate" means "[t]o render an act
void; as, to vacate an entry of record, or a judgment." Black’s Law
Dictionary 1548 (6th ed. 1990). And a judgment that is "void," as
opposed to one that is merely "voidable," "is nugatory and ineffectual
so that nothing can cure it." Id. at 1573. Although Martin’s district
court judgment was nullified for most purposes, see ante at 4, it was
not "void ab initio" as Martin claims. Rather, if Martin had chosen to
withdraw her request for a trial de novo, the superior court would
have remanded her case to the district court to execute the previously
entered judgment. N.C. Gen. Stat. § 15A-1431(g), (h). Thus, Martin’s
conviction was not technically "void" or "vacated."
Moreover, even if her conviction could roughly be characterized in
such a manner, it is nevertheless not the type of vacated conviction
warranting exclusion under the Guidelines. The commentary to the
Guidelines only excludes convictions vacated "because of errors of
law or because of subsequently discovered evidence exonerating the
defendant," or those that were "ruled constitutionally invalid in a prior
case." U.S.S.G. § 4A1.2, cmt. n.6. None of these circumstances are
present in the case at hand.
B.
Although Martin’s state misdemeanor larceny sentence was not
"under appeal" pursuant to § 4A1.2(1), or the result of a "vacated"
conviction pursuant to § 4A1.2, cmt. n.6, it does fall within one of the
other types of dispositions expressly discussed in § 4A1.2; the "exe-
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cution of [Martin’s] sentence was totally . . . stayed" under
§ 4A1.2(a)(3).
Under North Carolina law, appeal to a North Carolina superior
court for a trial de novo "stays the execution of portions of the judg-
ment relating to fine and costs . . . [and] stays portions of the judg-
ment relating to confinement when the defendant has complied with
conditions of pre-trial release." N.C. Gen. Stat. § 15A-1431(f)
(emphases added).
Of course, whether Martin’s sentence was "stayed" for the pur-
poses of § 4A1.2(a)(3) is a question of federal law. See, e.g., United
States v. Stewart, 49 F.3d 121, 123 n.3 (4th Cir. 1995). Nonetheless,
state law can be informative for the limited purpose of determining
the effect of the state court’s sentence. See United States v. Compian-
Torres, 320 F.3d 514, 516 (5th Cir. 2003). And, in this instance, as
the Government itself concedes, the state court designation accurately
depicts the state of Martin’s sentence during the pendency of her trial
de novo in superior court.
"To ‘stay’ an order or decree means to hold it in abeyance, or
refrain from enforcing it." Black’s Law Dictionary 1413 (6th ed.
1990). Once a defendant requests a trial de novo in North Carolina
superior court, the state district court judgment is held in abeyance —
it is not executed, nor is it technically vacated. Rather, as explained
earlier, in the event that Martin chooses to withdraw her request for
a trial de novo, the superior court will remand her case to the district
court to execute the heretofore "stayed" sentence. N.C. Gen. Stat.
§ 15A-1431(g), (h).
Because Martin’s misdemeanor larceny conviction in North Caro-
lina district court was one "for which the . . . execution of sentence
was totally . . . stayed," it should have been "counted as a prior sen-
tence under § 4A1.1(c)." U.S.S.G. § 4A1.2(a)(3). That section, unlike
§ 4A1.1(b) (upon which the district court relied to assign Martin two
criminal history points), only allots one criminal history point for
each prior sentence. U.S.S.G. § 4A1.1(c). Thus, the district court
improperly calculated Martin’s criminal history by assigning Martin
five criminal history points rather than four.2 Nevertheless, this error
2We note that the same result could be warranted for another reason;
Martin’s state misdemeanor larceny sentence may not constitute a "prior
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was harmless; offenders with four or five criminal history points are
both classified as Category III offenders, see U.S.S.G. ch. 5, pt. A.,
leaving the applicable guideline range unchanged.
IV.
Although we ultimately uphold the inclusion of Martin’s state mis-
demeanor larceny sentence in calculating her criminal history, as
mandated by the Guidelines, we are cognizant that counting the state
sentence at issue here — a sentence imposed upon an adjudication of
guilt in the first tier of a two-tier state system and awaiting a trial de
novo in the second tier — in a defendant’s federal criminal history
category could have significant and troubling consequences. Indeed,
there are compelling reasons not to count these dispositions at all, or
at the very least, to limit their use to circumstances in which the crim-
inal history category does not adequately reflect the seriousness of a
defendant’s past criminal history under U.S.S.G. § 4A1.3.
As an initial matter, the adjudication and sentence arising out of the
first tier merely constitute an interim disposition in what is, in reality,
a bifurcated trial system, and as such, lack any semblance of finality.
See, e.g., Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 309
(1984) (agreeing that "[w]hile technically [the defendant] is ‘tried
again,’ the second stage proceeding can be regarded as but an
enlarged, fact-sensitive part of a single, continuous course of judicial
proceedings . . .") (internal quotation marks and citation omitted).
sentence of imprisonment" under § 4A1.1(b). "To qualify as a sentence
of imprisonment, the defendant must have actually served a period of
imprisonment on such sentence (or, if the defendant escaped, would have
served time)." U.S.S.G. § 4A1.2, cmt. n.2. As noted above, we cannot
determine from the record whether Martin served any portion of the
sixty-day sentence imposed by the North Carolina district court. If, in
fact, she did not actually serve at least a portion of that sentence, her mis-
demeanor larceny sentence would not constitute a "sentence of imprison-
ment" under § 4A1.1(b), and thus could only be accorded one criminal
history point as a "prior sentence not counted in (a) or (b)" under
§ 4A1.1(c). U.S.S.G. § 4A1.1(c); see also United States v. Murphy, 241
F.3d 447, 459 (6th Cir. 2001).
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Moreover, the first-tier proceeding lacks a number of procedural and
constitutional safeguards normally afforded to criminal defendants,
casting substantial doubt on the reliability of the resulting interim dis-
position. See ante at 5. Indeed, the Supreme Court has candidly
acknowledged that these first-tier "inferior courts are not designed or
equipped to conduct error-free trials, or to insure full recognition of
constitutional freedoms." Colten, 407 U.S. at 117 (internal quotation
marks and citation omitted).
Even more troubling, however, basing federal sentences on convic-
tions obtained in first-tier courts that do not afford defendants any
right to a jury trial may render two-tier state systems unconstitutional
in those instances in which the constitutional right to a jury trial is
implicated. Although the Supreme Court has held that the absence of
a jury in the first tier, as long as one is eventually provided, does "not
unduly burden[ ]" a defendant’s constitutional right to a jury trial, in
doing so, it presumed that virtually no collateral consequences would
result from a judgment rendered in a first-tier court. Ludwig v. Massa-
chusetts, 427 U.S. 618, 624-30 (1976); see also Lydon, 466 U.S. at
310 (stating that "virtually nothing can happen to a defendant at a
first-tier trial that he cannot avoid" because "[o]nce the right to a trial
de novo is exercised, the judgment at the bench trial is ‘wiped out’");
Colten, 407 U.S. at 119-20 (stating that "a defendant can bypass the
inferior court simply by pleading guilty and erasing immediately
thereafter any consequence that would otherwise follow from tender-
ing the plea"). Mandating inclusion in a defendant’s criminal history
of a sentence imposed pursuant to a conviction in the first tier, when
the defendant has affirmatively exercised her absolute right to a de
novo jury trial in the second tier, would seemingly constitute a signifi-
cant collateral consequence. Thus, applying the Guidelines as written
raises serious questions about the constitutional validity of the two-
tier system (in instances where a defendant’s jury trial right is impli-
cated) both in North Carolina and in the many other states employing
similar systems.
Despite these grave, and perhaps unintended, consequences, we
believe that the Guidelines’ admonition that "[p]rior sentences, not
otherwise excluded, are to be counted in the criminal history score,"
U.S.S.G. § 4A1.2, cmt. background, requires the result we reach here.
Accordingly, we affirm. But, in doing so, we suggest that the Sen-
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tencing Commission carefully consider, in light of the ramifications
discussed above, whether, and to what extent, state interim sentences
arising out of two-tier criminal trial systems should be included in a
defendant’s criminal history category.
AFFIRMED
HANSEN, Senior Circuit Judge, concurring in the judgment and join-
ing in the opinion except as to Part IV.
I readily concur in the judgment and in all of the court’s opinion
except for Part IV. I respectfully decline to join Part IV because, in
the circumstances of this case, Martin’s right to a jury trial was not
violated. I would therefore not render an advisory opinion as to poten-
tial constitutional infirmities in theoretical future cases. Further, I am
unwilling to assume, as the court apparently does, that the Sentencing
Commission has not already considered what effect should be given
to a first-tier state court conviction in a two-tier state system. Given
the fact that about half of the States employ such a system, I find it
hard to believe that the Commission would have overlooked the mat-
ter for fifteen years, particularly when it has considered and provided
for even more rare events, e.g., tribal, military, and foreign convic-
tions.
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