By: Kristina Wilson
On Monday, January 30, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Dozier. The Fourth Circuit affirmed the Southern District Court of West Virginia’s designation of the defendant as a career offender and also held that the defendant’s prior state conviction under West Virginia law constituted a controlled substance offense under § 4B1.2 of the Sentencing Guidelines.
Facts and Procedural History
In April of 2015, the defendant pled guilty to violating 21 U.S.C. § 841(a)(1) by knowingly distributing a set quantity of crack cocaine. The court used the modified categorical approach to hold that the defendant’s two prior state convictions were “controlled substance offenses” under § 4B1.2 of the Sentencing Guidelines. The court consequently determined that the defendant should receive career offender status. On appeal, the defendant argued that the second of his two prior state convictions did not qualify as a controlled substance offense and that consequently, he should not be termed a career offender.
The District Court Should Not Have Used the Modified Categorical Approach
When determining whether to apply a Guideline sentencing enhancement, courts use a categorical inquiry to determine whether a defendant was convicted of a crime that qualifies as a predicate offense. However, when a statute is “divisible,” courts deviate from this categorical approach to apply a modified categorical approach. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). A “divisible” statute lists elements in the alternative and defines multiple crimes. Id.
The modified categorical approach consults particular documents to ascertain of what crime and with what elements a court convicted a defendant. Id. Courts should only use the modified categorical approach in limited circumstances. Where a statute defines an offense broadly and is not divisible, the modified categorical approach “has no role to play.” Cabrera-Umanzor, 728 F.3d at 350 (quoting Descamps, 133 S. Ct. at 2285).
Thus, the Fourth Circuit’s first task was to determine if the West Virginia statute under which the District Court convicted the defendant was divisible and therefore subject to the modified categorical approach. While the Fourth Circuit conceded that the statute could be “generally divisible,” it argued that such general divisibility was not sufficient to apply the modified categorical approach without first engaging in the following two-part inquiry: (i) Was the state statute’s definition of “attempt” consistent with the generic definition of “attempt” in the career offender enhancement? United States v. Gonzalez-Monterroso, 745 F.3d 1237, 1240 (9th Cir. 2014), and (ii) Was the underlying state offense a categorical match for the Guideline predicate offense? Id. The Fourth Circuit stated that the District Court should not have applied the modified categorical approach without first engaging in these analyses.
West Virginia’s Attempt Statute Is A Categorical Match For the Generic Definition of Attempt
West Virginia’s attempt statute requires both specific intent to commit the underlying crime and an overt act in furtherance of that crime. Similarly, Fourth Circuit precedent defines “attempt” as requiring both culpable intent to commit the charged crime and a substantial step toward committing the crime. The Fourth Circuit argued that the intent requirement in the West Virginia statute was no broader than that of the Fourth Circuit statute and that the act elements in each statute were consistent; each required more than preparatory acts that strongly indicated criminal intent. Therefore, the Fourth Circuit held that the statutes were substantially similar and were a categorical match.
The Prior State Conviction Was A “Controlled Substance Offense”
The Fourth Circuit held that the West Virginia controlled substance statute was no broader than § 4B1.2 of the Sentencing Guidelines. West Virginia Code § 60A-4-401 prohibits the manufacture, delivery, or possession with intent to manufacture or deliver of controlled substances. Sentencing Guideline § 4B1.2 proscribes the manufacture, importation, exportation, distribution, or dispensation of controlled substances. Thus, the two acts have substantially similar intent and action requirements, and the defendant’s underlying offense was a categorical match of a generic controlled substance offense.
The District Court erred in applying the modified categorical approach before analyzing the two inquiries above. However, the District Court reached the proper result in classifying the prior state conviction as a “controlled substance offense” and in classifying the defendant as a career offender. Consequently, the Fourth Circuit affirmed.