United States v. Campbell

22 F.4th 438

UNITED STATES of America, Plaintiff – Appellee,

v.Trey Cardale CAMPBELL, Defendant – Appellant.

No. 20-4256

United States Court of Appeals, Fourth Circuit.

Argued: September 24, 2021

Decided: January 7, 2022

ARGUED: Jenny R. Thoma, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Wheeling, West Virginia, for Appellant. Timothy David Helman, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee. ON BRIEF: Aaron D. Moss, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Martinsburg, West Virginia, for Appellant. William J. Powell, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

Before GREGORY, Chief Judge, and MOTZ and THACKER, Circuit Judges.

Vacated and remanded for resentencing by published opinion. Judge Motz wrote the opinion in which Chief Judge Gregory and Judge Thacker joined.

DIANA GRIBBON MOTZ, Circuit Judge

This appeal raises the question of whether, as the district court determined, commission of an attempt crime constitutes a "controlled substance offense" supporting a career offender sentencing enhancement. Because the Sentencing Guidelines' definition of a "controlled substance offense" does not include an attempt crime, we must vacate the enhanced sentence imposed in this case and remand for resentencing.

I.

After a jury convicted Trey Cardale Campbell of possession with intent to distribute opiates in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), he received an enhanced sentence as a career offender. See United States Sentencing Guidelines (U.S.S.G.) § 4B1.1. The district court identified two, and only two, predicate "controlled substance offense[s]" justifying the enhancement – a West Virginia conviction for delivery of crack cocaine in violation of a statute that criminalizes attempt offenses, see W. Va. Code §§ 60A-1-101(h), 60A-4-401(a), and a federal conviction for aiding and abetting distribution of cocaine base within 1,000 feet of a school. The career offender enhancement increased Campbell's offense level from 22 to 32 and his criminal history category from IV to VI. Without the enhancement, his recommended imprisonment range was 63-78 months. With it, the recommended range was 210-240 months.

Campbell objected to the sentencing enhancement, arguing that the Sentencing Guidelines did not include attempt within its definition of "controlled substance offense," and so he did not have the requisite two prior convictions of a "controlled substance offense." He renews that argument before us.¹ The district court overruled Campbell's objections to the career offender enhancement, found that he did have two prior convictions of "controlled substance offense[s]," and on that basis imposed a sentence of 180 months imprisonment.

Campbell then timely filed this appeal. We "consider de novo the [question of] whether a prior conviction qualifies under the Guidelines as a ‘controlled substance offense’ for purposes of a sentencing enhancement." United States v. Allen , 909 F.3d 671, 674 (4th Cir. 2018).

II.

The Sentencing Guidelines provide that a defendant will be sentenced as a "career offender" if, among other requirements, "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)(3). The Sentencing Guideline at issue here, U.S.S.G. § 4B1.2(b), defines a "controlled substance offense" as follows:

The term "controlled substance offense" means 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.

The Sentencing Commission's commentary in the first application note to U.S.S.G. § 4B1.2(b) additionally provides that a controlled substance offense "include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.’ " U.S.S.G. § 4B1.2, appl. n.1 (hereafter "the Commentary").

To determine whether a conviction under an asserted predicate offense statute like the West Virginia law constitutes a "controlled substance offense" as defined by the Sentencing Guidelines, we employ the categorical approach. United States v. Ward , 972 F.3d 364, 368 (4th Cir. 2020). If the "least culpable" conduct criminalized by the predicate offense statute does not qualify as a "controlled substance offense," the prior conviction cannot support a career offender enhancement. United States v. King , 673 F.3d 274, 278 (4th Cir. 2012).

The West Virginia conviction that served as one of the predicate offenses justifying Campbell's enhanced sentence arises from a statute that makes it "unlawful for any person to manufacture, deliver , or possess with intent to manufacture or deliver a controlled substance." W. Va. Code § 60A-4-401(a) (emphasis added). The statute further provides that "deliver ... means the actual, constructive or attempted transfer from one person to another of" controlled substances or imitation or counterfeit controlled substances. W. Va. Code § 60A-1-101(h) (emphasis added). In other words, the least culpable conduct criminalized by the West Virginia statute is an attempt to deliver a controlled substance. W. Va. Code §§ 60A-1-101(h) ; 60A-4-401(a). So, under the categorical approach, the question is whether U.S.S.G. § 4B1.2(b)'s definition of "controlled substance offense" includes an attempt to deliver a controlled substance.

Campbell maintains that an attempt crime cannot constitute a "controlled substance offense."² For this reason, he further contends that his West Virginia conviction does not qualify as a career offender predicate. Given that the district court only identified two predicate controlled substance offenses, if the West Virginia conviction is not a "controlled substance offense," then Campbell has not committed the two predicate offenses required for the enhanced sentence under U.S.S.G. § 4B1.1. And if Campbell did not commit two predicate offenses, the district court erred in applying the career offender enhancement to increase his sentence.

Resolving the question of whether an attempted offense can constitute a "controlled substance offense" has challenged the federal courts because of a crucial difference between the text of U.S.S.G. § 4B1.2(b) itself and the text of the Sentencing Commission's Commentary to that Guideline. The text of U.S.S.G. § 4B1.2(b) does not state or in any way indicate that aiding and abetting, conspiracy, and attempt are "controlled substance offense[s]"; but the Commentary expressly states that these crimes are "controlled substance offense[s]." Compare U.S.S.G. § 4B1.2(b), with U.S.S.G. § 4B1.2 appl. n.1.

In Stinson v. United States , the Supreme Court directed courts to take commentary to the Sentencing Guidelines as authoritative unless doing so would violate the Constitution or a federal statute, or would be a "plainly erroneous" or "inconsistent" reading of the Sentencing Guideline itself. 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). The Court explained that when the "commentary and the guideline it interprets are inconsistent in that following one will result in violating the dictates of the other, the Sentencing Reform Act itself commands compliance with the guideline." Id. at 43, 113 S.Ct. 1913.

Initially, courts read Stinson to support a holding that an inchoate crime like attempt or conspiracy did constitute a "controlled substance offense," because the Commentary to U.S.S.G. § 4B1.2(b) so stated. See, e.g., United States v. Raupp , 677 F.3d 756, 759 (7th Cir. 2012), overruled on other grounds, United States v. Rollins , 836 F.3d 737 (7th Cir. 2016) ; United States v. Mendoza-Figueroa , 65 F.3d 691, 692–94 (8th Cir. 1995) (en banc); United States v. Piper , 35 F.3d 611, 616–18 (1st Cir. 1994) ; United States v. Vea-Gonzales , 999 F.2d 1326, 1330 (9th Cir. 1993), overruled on other grounds, Custis v. United States , 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994).

In 2018, the D.C. Circuit became the first court to reject this view. See United States v. Winstead , 890 F.3d 1082 (D.C. Cir. 2018) (Silberman, J.). The Winstead court concluded that "there is no question that ... the commentary [to U.S.S.G. § 4B1.2(b) ] adds a crime, ‘attempted distribution,’ that is not included in the guideline." Id. at 1090. Because U.S.S.G. § 4B1.2(b) "present[ed] a very detailed ‘definition’ of controlled substance offense that clearly excludes inchoate offenses," the D.C. Circuit held that the Commentary's inclusion of such offenses had "no grounding in the guidelines themselves," and thus U.S.S.G. § 4B1.2(b) and its Commentary were inconsistent. Id. at 1091–92.

The Sixth Circuit followed the next year, overturning circuit precedent to the contrary in an en banc decision. See United States v. Havis , 927 F.3d 382, 386 (6th Cir. 2019) (en banc) (per curiam) ("To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in the guideline itself — no term in § 4B1.2(b) would bear that construction. Rather, the Commission used Application Note 1 to add an offense not listed in the guideline." (footnote omitted)). Since that time, the Third Circuit, also sitting en banc , has agreed with the Sixth and D.C. Circuits that the Commentary is inconsistent with U.S.S.G. § 4B1.2(b). United States v. Nasir , 982 F.3d 144, 156–60 (3d Cir. 2020) (en banc), vacated and remanded on other grounds , ––– U.S. ––––, 142 S. Ct. 56, 211 L.Ed.2d 1 (2021), aff'd on remand , 17 F.4th 459, 467–72 (3d Cir. 2021) (en banc). And panels of the Fifth and Ninth Circuits have recently indicated that they would also do so were they not bound by circuit precedent. See United States v. Crum , 934 F.3d 963, 966 (9th Cir. 2019) ; United States v....