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United States v. Goodwin

United States District Court, D. South Carolina, Columbia Division

December 14, 2018

United States of America,
v.
Willie Joe Goodwin, II, Defendant.

          ORDER AND OPINION

         Before the court for review are Defendant Willie Joe Goodwin, II's (“Defendant”) objections to the Presentence Investigation Report (“PSR”) filed on September 13, 2018. (ECF No. 39.) The court sustains Defendant's first objection and orders the United States Probation Office to submit a new offense level computation and sentencing recommendation in accordance with this Order and Opinion.

         I. INTRODUCTION

         On March 14, 2018, Defendant pleaded guilty to possession with intent to distribute cocaine base. (ECF Nos. 34, 36.) On September 13, 2018, the PSR was filed. (ECF No. 39.)

         Defendant “objects to the [PSR]'s conclusion . . . that [he] is a career offender based on [his two South Carolina] convictions” for Possession with Intent to Distribute Marijuana. (ECF No. 39-2 at 1; ECF No. 39 at 9 ¶ 29, 11 ¶ 31.) For both of these convictions, Defendant “pled guilty as indicted” on June 13, 2002. (ECF No. 39 at 9 ¶ 29, 11 ¶ 31.) Based on these prior felony convictions, the PSR set Defendant's base offense level at thirty-four (34), finding that,

[s]ince the instant offense[s] involved controlled substances and the [D]efendant was 18 years old at the time of [their] commission, the [D]efendant is a Career Offender within the meaning of [United States Sentencing Guideline (“U.S.S.G.”)] § 4B1.1.

(ECF No. 39 at 39 ¶ 104.) The PSR recommends Defendant's “Total Offense Level” is thirty-one (31) after applying reductions for accepting responsibility. (Id. at 39 ¶¶ 105-07.) Finally, the PSR concludes that, “With a total offense level of 31 and a criminal history category of VI, the guideline imprisonment range is 188 to 235 months.” (Id. at 42 ¶ 124.)

         Under section 4B1.1 of the United States Sentencing Guidelines (“Guidelines”), a defendant's base offense level is enhanced if he is a “career offender.”

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1(a) (emphasis added). A “controlled substance offense” is defined under the Guidelines as

an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(b). The commentary to U.S.S.G. § 4B1.2 further defines a controlled substance as including the offenses of “aiding and abetting, conspiring, and attempting to commit” the above offenses. Id. at cmt. 1.

         When determining whether a prior state conviction qualifies as a “controlled substance offense” under the Guidelines, the court “approach[es] the issue categorically, looking ‘only to the fact of conviction and the statutory definition of the prior offense.'” United States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013) (quoting Taylor v. United States, 495 U.S. 575, 602, (1990)); McNeill v. United States, 563 U.S. 816, 820 (2011) (“The only way to answer this backward-looking question is to consult the law that applied at the time of that conviction.”). “The categorical approach focuses on the elements of the prior offense rather than the conduct underlying the conviction.” Id. To apply the categorical approach, the court “compar[es] the elements of the underlying offense to the federal definition.” United States v. Walker, 858 F.3d 196, 198 (4th Cir. 2017). See also Mathis v. United States, 136 S.Ct. 2243, 2248 (2016) (“The comparison of elements that the categorical approach requires is straightforward when a statute sets out a single (or ‘indivisible') set of elements to define a single crime. The court then lines up that crime's elements alongside those of the generic offense and sees if they match.”). If the elements of the underlying offense “sweep[] more broadly” than the federal definition, “a conviction under that law cannot count” as a controlled substance offense. Descamps v. United States, 570 U.S. 254, 261 (2013).

         At the time Defendant was sentenced, section 44-53-370(a) of the South Carolina Code Ann. (2002) provided, (a) Except as authorized by this article it shall be unlawful for any person:

(1) to manufacture, distribute, dispense, deliver, purchase, aid, abet, attempt, or conspire to manufacture, distribute, dispense, deliver, or purchase, or possess with the intent to manufacture, distribute, dispense, deliver, or purchase a controlled substance or a controlled substance analogue.

         When faced with a statute like this, the sentencing court must first determine whether the statute is “divisible” or “indivisible.” A divisible statute “sets out one or more elements of the offense in the alternative.” Descamps, 570 U.S. at 257. An indivisible statute “creates an implied list of every means of commission that otherwise fits the definition of a given crime.” United States v. Hemingway, 734 F.3d 323, 334 (4th Cir. 2013) (quoting Descamps, 570 U.S. at 271). Put another way,

The first task for a sentencing court faced with an alternatively phrased statute is . . . to determine whether its listed items are elements or means. If they are elements, the court should do what we have previously approved: review the record materials to discover which of the enumerated alternatives played a part in the defendant's prior conviction, and then compare that element (along with all others) to those of the generic crime. But if instead they are means, the court has no call to decide which of the statutory alternatives was at issue in the earlier prosecution.

Mathis, 136 S.Ct. at 2256 (citation omitted). Thus, if the statute lists means, or is indivisible, the categorical approach applies. But, if the statute list elements, and is divisible, the modified categorical approach applies. See United States v. Vinson, 794 F.3d 418, 430 (4th Cir. 2015) (“Because the offense is divisible, the modified categorical approach is applicable.”); Omargharib v. Holder, 775 F.3d 192, 198 (4th Cir. 2014) (“After Descamps, we may apply the modified categorical approach only if the state crime at issue is divisible.”); United States v. Marshall, No. 16-4594, 2018 WL 4150855, at *8 (4th Cir. Aug. 29, 2018) (“When a state statute is ‘divisible,' however, we apply the modified categorical approach, which enables us to compare the elements of the state and federal generic offenses.”). If “the statute is ‘divisible'- i.e., comprises multiple, alternative versions of the crime-a later sentencing court cannot tell, without reviewing something more, if the defendant's conviction was for” a version of the crime that meets the federal definition, and therefore, qualifies for a sentencing enhancement. Descamps, 570 U.S. at 262. Under the modified categorical approach, “the sentencing court may . . . consult certain approved ‘extra-statutory materials . . . to determine which statutory phrase was the basis for the conviction.” United States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013) (quoting Descamps, 570 U.S. at 256). However, “As the Supreme Court emphasized . . . the modified categorical approach, ‘serves a limited function: It helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction.'” Id. (quoting Descamps, 570 U.S. at 260).

         Defendant argues that because section 44-53-370(a)(1) can be violated by purchasing marijuana, it “does not meet the guideline definition of a controlled substance offense, as defined by U.S.S.G. § 4B1.2(b).” (ECF No. 39-2 at 1.) Defendant contends the South Carolina statute is not divisible under Mathis because the statute “set[s] out a single crime, a drug violation, that can be committed a number of different ways.” (Id. at 2.) Thus, Defendant asserts, and the Government agrees, that under the categorical approach, section 44-53-370(a)(1) is broader than the federal definition because it prohibits purchasing a controlled substance, while the federal definition prohibits the “manufacture, import, export ...


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