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'USA Today' story uncovers problem with criminal sentencing

READ MORE: 'USA Today' story uncovers problem with criminal sentencing
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ELIZABETHTOWN, NC (WWAY) -- A recent change in federal law means some folks may be wrongfully serving time in federal prison. Our story stems from an investigation in "USA Today" centered around a man from Elizabethtown sitting in jail for a crime he did not technically commit.

"He was an alright fellow when he wanted to be," Debra Bellamy said of her ex-boyfriend Terrell McCullum. "He was alright."

McCullum is a man who is legally innocent yet still behind bars.

"I don't know if he was a convicted felon or not, but I know he had been in trouble with the law," Bellamy said.

McCullum has a long rap sheet ranging from small traffic violations to assault.

In late 2007, when he went to collect his things after he and Bellamy broke up, they got into an argument. Police were called, and they saw him with multiple guns. They charged McCullum with possession of a firearm by felon, which led to a federal sentence.

In August of last year, a federal court ruling changed the definition of a federal felon. That means McCullum is no longer guilty of possession of a firearm by felon

State prosecutors say this is not a question of innocence; it's about the proper venue for these cases to be heard.

"What we are talking about right now are not folks who have been exonerated by DNA or misidentified in a photo line-up," said Ben David, District Attorney for New Hanover and Pender Counties. "They are people that because of a legal technicality that's come about after a ruling, might be factually guilty but legally innocent of a federal felony possession of a firearm but still very much guilty under state law."

This situation particularly pertains to our state because North Carolina has what's called structured sentencing. That means criminals are sentenced based on their past record. But the Simmons case has changed how state sentencing impacts federal time.

"No longer are we going to look and see what the most any person could have received for that state conviction was," said Eric Placke, a federal public defender in Greensboro. "We are going to see what's the most this particular defendant could have received."

Just months after the federal ruling, the North Carolina General Assembly restructured sentencing guidelines so there is no longer gray area. The question now is whether cases like McCullum's should be looked at retroactively.

Public defenders are working to find the people this pertains to, but attorneys we spoke with say the US Department of Justice is reluctant to go back on their previous rulings.

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