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March 14, 2017
  United States v. Dozier -- Fourth Circuit
Fourth Circuit Joins Ninth Circuit in Adopting Two-Step Analysis to Find General Attempt Conviction Constitutes Controlled Substance Offense under Sentencing Guidelines

Areas of Law: Criminal Law, Sentencing Guidelines

Issue Presented: Whether a defendant's prior conviction for attempt to distribute a controlled substance under West Virginia law constitutes a "controlled substance offense" under U.S.S.G. § 4B1.2 for purposes of the career offender sentencing enhancement.

Brief Summary: The United States Court of Appeals for the Fourth Circuit held that the District Court erred in applying the modified categorical approach to determine whether the defendant's prior attempt conviction constituted a "controlled substance offense" for purposes of career offender sentencing. The Fourth Circuit explained that, under the categorical approach required by the U.S. Supreme Court in Mathis, a court must engage in two analyses: first, a court must determine whether the state's definition of "attempt" categorically comports with the generic definition of "attempt" as that term is used in the career-offender enhancement. Second, a court must determine whether the underlying state offense is a categorical match for the Guideline predicate offense. Applying this analysis, the Fourth Circuit nevertheless found that the District Court correctly concluded that the defendant's prior attempt conviction constituted a "controlled substance offense." Therefore, the Fourth Circuit affirmed the District Court's judgment.

Extended Summary: In 2015, Deshawn Dozier was charged with knowingly and intentionally distributing cocaine in violation of federal law. After Dozier entered his guilty plea, the probation officer provided the District Court with a presentence investigation report ("PSIR"), which recommended in part a career offender enhancement.

Dozier was designated a career offender due to two prior state convictions, which were categorized as "controlled substance offenses" under § 4B1.2 of the U.S. Sentencing Guidelines. Under § 4B1.2, a "controlled substance offense" includes the "attempt[] to commit such [an] offense[]." Dozier's second state conviction was a conviction for attempt to distribute a controlled substance under West Virginia law. Dozier objected to the categorization of his second conviction and his resulting career offender status. The District Court overruled Dozier's objection, holding that Dozier's attempt conviction constituted a "controlled substance offense" under a modified categorical approach. Thus, the District Court adopted the PSR's recommendation and imposed a sentence of 151-month imprisonment.

The Fourth Circuit first found that the District Court erred in applying the modified categorical approach to the West Virginia general attempt statute, reasoning that the statute is not divisible. Nevertheless, the Fourth Circuit held that the District Court correctly concluded that Dozier's prior attempt conviction constituted a "controlled substance offense" after analyzing the case under the proper categorical approach.

Citing United States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013), Taylor v. United States, 495 U.S. 575, 602 (1990), and Mathis v. United States, 136 S. Ct. 2243, 2246 (2016), the Fourth Circuit explained that, when addressing whether a prior conviction triggers a Sentencing Guideline enhancement, the categorical approach focuses on the elements of the prior offense. For a prior conviction to qualify as a Guideline predicate offense, "the elements of the prior offense [must] 'correspond[] in substance' to the elements of the enumerated offense." Citing the Ninth Circuit decision in Rebilas v. Mukasey, 527 F.3d 783, 787 (9th Cir. 2007), the Fourth Circuit found that because Dozier was convicted under West Virginia's general attempt statute two sets of elements were at issue: the elements of attempt and the elements of the underlying attempted controlled substance offense.

Citing two Ninth Circuit decisions United States v. Gomez-Hernandez, 680 F.3d 1171, 1175 (9th Cir. 2012), and United States v. Gonzalez-Monterroso, 745 F.3d 1237, 1240 (9th Cir. 2014), the Fourth Circuit held that a court must engage in two related analyses to adhere to the "elements-only inquiry" required by Mathis. First, a court must determine whether the state's definition of "attempt" categorically comports with the generic definition of "attempt" as that term is used in the career-offender enhancement. Second, a court must determine whether the underlying state offense is a categorical match for the Guideline predicate offense.

First, the Fourth Circuit held that, under the Taylor categorical approach, West Virginia's attempt statute is a categorical match for the generic definition of "attempt." The Fourth Circuit's precedent defines "generic attempt" as requiring (1) culpable intent to commit the crime charged and (2) a substantial step towards the completion of the crime. West Virginia criminal law defines attempt as requiring "(1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime, which falls short of completing the underlying crime." After comparison, the Fourth Circuit found that the degree of intent required under West Virginia's general attempt statute is no broader than that required under the generic definition. The Fourth Circuit also found that the definition of an overt act under West Virginia law "corresponds in substance" to the generic definition of a substantial act.

Second, the Fourth Circuit held that the underlying offense is a categorical match for a generic "controlled substance offense." U.S.S.G. § 4B1.2(b) provides that a controlled substance offense is an offense 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." The underlying statutory offense at issue, West Virginia Code § 60A-4-401, provides "it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance." Accordingly, the Fourth Circuit found the act and related intent elements of § 60A-4-401(a) are no broader than those of the generic offense. In addition, both the controlled substance offense and Dozier's underlying attempted offense, i.e., distributing cocaine, are felonies punishable by imprisonment for a term exceeding one year.

Therefore, the Fourth Circuit concluded that Dozier's prior attempt conviction qualifies as a controlled substance offense, and Dozier was properly deemed a career offender under the Sentencing Guidelines. As a result, the Fourth Circuit affirmed the District Court's judgment.

To read the full opinion, click here.

Panel: Judges Shedd and Keenan, and Senior Judge Davis

Argument Date: 10/27/2016

Date of Issued Opinion: 01/30/2017

Docket Number: No. 15-4532

Decided: Affirmed by published opinion.

Case Alert Author: Maria Nazarova, Univ. of Maryland Carey School of Law

Counsel: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Miller A. Bushong, III, OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee. ON BRIEF: Christian M. Capece, Federal Public Defender, Rachel E. Zimarowski, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Carol A. Casto, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Author of Opinion: Senior Judge Davis

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 03/14/2017 12:58 PM     4th Circuit  

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