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United States v. Ketter

United States Court of Appeals, Fourth Circuit

November 8, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
SHELTON DEMOND KETTER, Defendant-Appellant.

          Argued: September 27, 2018

          Appeal from the United States District Court for the District of South Carolina, at Florence. Terry L. Wooten, Chief District Judge. (4:09-cr-00851-TLW-1)

         ARGUED:

          Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant.

          Carrie Fisher Sherard, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee.

         ON BRIEF:

          Beth Drake, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

          Before GREGORY, Chief Judge, and MOTZ, Circuit Judge, and William L. OSTEEN, Jr., United States District Judge for the Middle District of North Carolina, sitting by designation.

          DIANA GRIBBON MOTZ, CIRCUIT JUDGE:

         After a jury in 2010 found Shelton Demond Ketter guilty of being a felon in possession of a firearm, the district court applied the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B), to sentence him to 192 months' imprisonment and five years of supervised release. Following Ketter's successful challenge to his sentence as contrary to Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016), the court resentenced him to imprisonment for time served, followed by two years of supervised release to expire in April 2019. Ketter appeals, challenging his sentence as procedurally and substantively unreasonable. After rejecting the Government's contention that the case is moot, we affirm the judgment of the district court.

         I.

         When the district court originally sentenced Ketter, he had two prior convictions for South Carolina second-degree burglary. Pursuant to then-controlling law, these prior crimes provided the basis for finding him an "armed career criminal" under the ACCA's residual clause. This subjected him to a mandatory minimum sentence of fifteen years' imprisonment with a Guidelines range of three to five years of supervised release. U.S.S.G. § 5D1.2(a)(1) (Nov. 2009).

         After holding the ACCA's residual clause unconstitutional in Johnson, the Supreme Court held in Welch that Johnson announced a substantive rule that applied retroactively to cases on collateral review. Welch, 136 S.Ct. at 1268. In response to these holdings, Ketter filed an amended petition to correct his sentence under 28 U.S.C. § 2255. He maintained, and the Government agreed, that Johnson and Welch established that he no longer qualified as an armed career criminal.

         On May 16, 2016, the parties jointly moved for expedited resentencing. Six months later, Ketter moved for immediate resentencing. Unclear as to whether Mathis v. United States, 136 S.Ct. 2243 (2016), applied retroactively on collateral review, the district court ordered additional briefing on the issue. The parties agreed that it did. The court then set the case for resentencing but discovered that a pending Fourth Circuit case, United States v. Hall,684 Fed.Appx. 333, 335-36 (4th Cir. 2017), presented the precise question regarding the applicability of ...


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