United States of America v.  TERRY B. PRESSLEY, a/k/a Big Troop, a/k/a Troop

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4769 
TERRY B. PRESSLEY, a/k/a Big Troop,
a/k/a Troop,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, Senior District Judge.
(CR-01-112)
Argued: January 23, 2004
Decided: February 27, 2004
Before WIDENER, MOTZ, and GREGORY, Circuit Judges.
Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge Widener and Judge Gregory joined.
COUNSEL
ARGUED: C. Gordon McBride, Hartsville, South Carolina, for
Appellant. Alfred William Walker Bethea, Jr., Assistant United States
Attorney, Florence, South Carolina, for Appellee. ON BRIEF: J.
Strom Thurmond, Jr., United States Attorney, Florence, South Caro-
lina, for Appellee.

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OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Terry B. Pressley appeals the enhancement of his sentence under
the Armed Career Criminal Act, 18 U.S.C. § 924(e) (1994). He con-
tends that the district court erred in concluding that his prior convic-
tion for common law breach of the peace constituted a "previous
conviction" within the meaning of § 924(e). Because this conviction
occurred after he committed the instant offense, and thus does not
qualify as a previous conviction, we vacate Pressley’s sentence and
remand for resentencing.
I.
Pressley was arrested on May 28, 1999, and later indicted for
unlawful possession of a firearm by a convicted felon in violation of
18 U.S.C. § 922(g)(1) (1994). On February 26, 2001, he pleaded
guilty to this charge pursuant to a written plea agreement.
In its first three presentence reports ("PSR"), the Probation Office
designated Pressley an armed career criminal subject to the fifteen-
year minimum sentence mandated by 18 U.S.C. § 924(e). The reports
identified Pressley’s three "previous convictions" as: (1) a 1990 con-
viction for possession with the intent to distribute cocaine; (2) a 1992
conviction for possession with the intent to distribute cocaine; and (3)
a 1992 escape conviction. Pressley noted his objection to the categori-
zation of his escape conviction as a "previous conviction," and the
Probation Office ultimately agreed. Because Pressley was then left
with only two qualifying predicate convictions, the Probation Office
did not classify Pressley as an armed career criminal in the final PSR.1
At sentencing, the district court agreed that the escape conviction
could not count as the third predicate conviction.
The district court then considered the Government’s alternative
argument that Pressley nonetheless qualified for armed career crimi-
1Pressley concedes that the two drug convictions constitute qualifying
convictions under § 924(e).
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nal status based on his March 22, 2001 breach of peace conviction,
which arose from acts occurring on August 26, 1999. Pressley con-
tended that the breach of peace conviction did not qualify as a predi-
cate conviction because it occurred after the § 922(g) offense for
which he was being sentenced, and, in any event, was not the sort of
offense — a "violent felony" or "serious drug offense" — that
counted for § 924(e) purposes. The district court disagreed and ulti-
mately classified Pressley as an armed career criminal. On September
11, 2002, the court sentenced Pressley to 211 months of imprison-
ment; without the armed career criminal enhancement, a violation of
§ 922(g) carries a maximum sentence of ten years or 120 months. 18
U.S.C. § 924(a)(2).
II.
The question before us is whether Pressley’s breach of peace con-
viction, obtained after he violated § 922(g), constitutes a "previous
conviction" under § 924(e). Pressley argues that only convictions in
place at the time a defendant commits a § 922(g) offense qualify as
"previous convictions," while the Government maintains that "previ-
ous convictions" include all convictions sustained before a defendant
is sentenced for a § 922(g) violation.2 We review questions of statu-
tory construction de novo. See United States v. Linney, 134 F.3d 274,
282 (4th Cir. 1998).
To discern congressional intent, we begin, as always, with the plain
text of the statute. See Williams v. Taylor, 529 U.S. 420, 431 (2000).
Under this first "cardinal canon" of construction, "courts must pre-
sume that a legislature says in a statute what it means and means in
a statute what it says there." Conn. Nat’l Bank v. Germain, 503 U.S.
249, 253-54 (1992). And "[w]hen the words of a statute are unambig-
uous . . . this first canon is also the last: judicial inquiry is complete."
Id. at 254 (internal quotation marks and citations omitted).
2Pressley also argues that the district court erred in characterizing his
breach of peace conviction as a "violent felony." Because we find that
the breach of peace conviction does not constitute a "previous convic-
tion," and thus cannot serve as a predicate offense for § 924(e) purposes,
we need not reach this question.
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With these well-established principles in mind, we turn to the text
of § 924(e)(1) which states:
In the case of a person who violates section 922(g) of this
title and has three previous convictions by any court referred
to in section 922(g)(1) of this title for a violent felony or
serious drug offense, or both, committed on occasions dif-
ferent from one another, such person shall be . . . imprisoned
not less than fifteen years[.]
18 U.S.C. § 924(e)(1) (1994). Thus, the plain text dictates that the rel-
evant act bringing a "violent felony or serious drug offense" within
the purview of § 924(e)(1) is the "conviction." So, until a defendant
is actually convicted of three applicable offenses, this sentencing
enhancement statute remains inoperative. Further, even if there is a
"conviction" for a "violent felony or serious drug offense," it will not
be counted for purposes of the statute unless it is "previous."
The only remaining question then is what event this "previous con-
viction" must precede. The plain language of the statute also provides
this answer — the § 922(g) violation. While the statute explicitly
refers to previous convictions when discussing the predicate offenses,
it looks to "a person who violates section 922(g)" when discussing the
instant offense. § 924(e)(1)(emphasis added); see also United States
v. Balascsak, 873 F.2d 673, 679 (3d Cir. 1989)(en banc)(noting that
the only "antecedent events mentioned" in the predecessor statute to
§ 924(e) were the "receipt, possession, or transportation of a firearm,"
and that to give full meaning to the statute, the three previous convic-
tions "must have occurred prior to the time the defendant received the
firearm"). Since the only reference in the statute to the § 922(g)
offense speaks of a § 922(g) violation, the plain text dictates that this
violation serves as the event which the "previous convictions" must
precede.3
3Perhaps because of the clarity of the statutory language, not even the
Government contends (and no court has held) that the § 922(g) convic-
tion date is the operative event. Regardless, such a contention would be
immaterial here; Pressley’s breach of peace conviction post-dated his
§ 922(g) conviction.
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Moreover, if we were to adopt the Government’s interpretation —
that any convictions obtained prior to sentencing qualify as "previous
convictions" — we would be violating a cardinal rule of statutory
construction by reading the term "previous" out of the statute. See
Duncan v. Walker, 533 U.S. 167, 174 (2001)("We are . . . reluctant
to treat statutory terms as surplusage in any setting.")(internal quota-
tion marks and citations omitted). Because the Government’s
approach incorporates all convictions existing at the time of sentenc-
ing, when this provision is applied, every conviction would, by defini-
tion, be "previous," rendering inclusion of the word "previous" in
§ 924(e) entirely unnecessary. See United States v. Talley, 16 F.3d
972, 975-76 (8th Cir. 1994) ("If previous convictions meant those
convictions a defendant had accumulated prior to sentencing, Con-
gress could have omitted the word previous because, at sentencing, a
district court could never consider convictions not yet in exis-
tence.")(emphases in original). We decline to treat the word "previ-
ous" as mere surplusage.
Rather than attempt to reconcile its interpretation of § 924(e) with
the statute’s plain language, the Government instead fashions an argu-
ment resting on the "character" of the statute. The Government argues
that because § 924(e) is a sentencing provision, and therefore applied
at the time of sentencing, it must necessarily reference all convictions
sustained prior to the date of sentencing. In particular, the Govern-
ment contends that to ensure consistency within the Sentencing
Guidelines, the timing sequence in § 924(e) should mirror that used
to compute a defendant’s criminal history under the Guidelines. For
criminal history purposes, § 4A1.2 of the Guidelines defines "prior
sentences" as all those imposed prior to sentencing on the instant
offense. See U.S. Sentencing Guidelines Manual § 4A1.2, cmt. n.1
(2003).
This argument fails. Not only does § 4A1.2 define a different term
("prior sentences") than that at issue in § 924(e) ("previous convic-
tions"), but also the far more analogous guideline governing career
offenders expressly defines "previous . . . convictions" as those occur-
ring prior to the instant offense. See U.S. Sentencing Guidelines Man-
ual § 4B1.2(c)(providing that "two prior felony convictions means
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[that] the defendant committed the instant offense of conviction sub-
sequent to sustaining at least two felony convictions").4
Besides failing to persuade, the Government’s argument, which
rests on assumptions drawn from outside the text, is of no moment
because "when the statute’s language is plain, the sole function of the
courts—at least where the disposition required by the text is not
absurd—is to enforce it according to its terms." Hartford Underwrit-
ers Ins. Co. v. Union Planters Bank, 530 U.S. 1, 6 (2000)(internal
quotation marks and citations omitted). Far from being "absurd," the
approach dictated by the text — that the § 922(g) violation date con-
trols — represents the most logical and compelling rule. Unlike the
sentencing date, the violation date is not subject to the whims of the
court’s docket nor vulnerable to manipulation by either party. Rather,
it would be "absurd" to adopt an interpretation, not supported by the
plain text of the statute, which would subject a defendant to a manda-
tory fifteen-year minimum sentence based on the mere fortuity of his
sentencing date.
We note that every other circuit to consider this question has
arrived at the same conclusion. United States v. Richardson, 166 F.3d
1360, 1361 (11th Cir. 1999); United States v. Garner, 32 F.3d 1305,
1312 (8th Cir. 1994); Talley, 16 F.3d at 977; Balascsak, 873 F.2d at
679 (interpreting predecessor statute, 18 U.S.C. § 1202(a)(1982)). In
fact, when appearing before the Eleventh Circuit in Richardson, the
Government itself conceded that a conviction obtained after a
§ 922(g) violation does not qualify as a "previous conviction" under
§ 924(e). Richardson, 166 F.3d at 1361.
In United States v. Hobbs, 136 F.3d 384, 387 n.3 (4th Cir. 1998),
we followed the lead of these courts by noting, albeit in dicta, that the
defendant’s armed robbery conviction did not constitute a "previous
conviction" under § 924(e) because it "occurred after the instant
offense."5 We now join our sister circuits in holding that § 924(e)
4We do not suggest that the definition of "previous convictions" in
§ 4B1.2 governs in interpreting that term in § 924(e), only that if a court
is to look to the Guidelines, § 4B1.2 provides a closer analogue than
§ 4A1.2.
5We recognize that we reached a contrary conclusion in United States
v. Hamilton, No. 93-5393, 1994 WL 381735 (4th Cir. July 22, 1994)(per
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applies only to defendants with three predicate convictions in place
prior to violating § 922(g).
In this case, Pressley was not convicted of breaching the peace
until March 22, 2001, one year and ten months after he violated
§ 922(g). J.A. 180, 187. As a result, the breach of peace conviction
does not constitute a "previous conviction" and thus cannot count as
Pressley’s third predicate conviction under § 924(e). With only two
qualifying convictions, Pressley cannot be deemed an armed career
criminal and should not have been sentenced as such.6 Accordingly,
we vacate Pressley’s sentence and remand for resentencing consistent
with this opinion.
VACATED AND REMANDED
curiam). But, of course, this unpublished per curiam opinion does not
constitute binding precedent in this circuit. See 4th Cir. R. 36(c); see also
United States v. Ruhe, 191 F.3d 376, 392 (4th Cir. 1999). Moreover, we
do not find the rationale in Hamilton, which rests on distinctions drawn
between § 924(e) and U.S.S.G. § 4B1.4, persuasive.
6The Government argues in the alternative that Pressley’s escape con-
viction qualifies as the third predicate offense. This argument is without
merit. At the time of Pressley’s conviction, escape was a misdemeanor
under South Carolina law punishable by not less than six months and not
more than two years. See S.C. Code Ann. § 24-13-410 (Law. Co-op.
1991). Pursuant to 18 U.S.C. § 921(a)(20)(B), an offense classified by
the state as a misdemeanor and punishable by a term of imprisonment of
two years or less does not qualify as a "violent felony." That the South
Carolina statute required all escape sentences to run consecutively is
immaterial. Whatever the total incarceration period, the "term of impris-
onment" for the escape conviction (the only relevant conviction) still
could not exceed two years. Thus, the escape conviction does not qualify
as a third predicate conviction.
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