United States v. Harbin

56 F.4th 843

UNITED STATES of America, Plaintiff - Appellee,

v.Roger Bryant HARBIN, Defendant - Appellant.

No. 21-8038

United States Court of Appeals, Tenth Circuit.

FILED December 27, 2022

Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender and Shira Kieval, Assistant Federal Public Defender, on the briefs), Office of the Federal Public Defender, Districts of Colorado and Wyoming, Denver, Colorado, for Defendant – Appellant.

Timothy J. Forwood, Assistant United States Attorney (L. Robert Murray, United States Attorney, with him on the brief), Office of the United States Attorney, District of Wyoming, Cheyenne, Wyoming, for Plaintiff – Appellee.

Before BACHARACH, MURPHY, and CARSON, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

Roger Harbin pled guilty to various drug and firearm offenses and was sentenced to a total of 280 months of imprisonment. On appeal, Harbin challenges his sentence, contending the district court plainly erred by enhancing his sentence under U.S.S.G. § 4B1.1. This court exercises jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. Because any error in applying the § 4B1.1 enhancement was not plain, we affirm the district court's sentencing decision.

II. Background

In October 2020, deputies from the Campbell County Sheriff's Office initiated a traffic stop after observing Harbin violating the speed limit. Instead of stopping his vehicle, Harbin led the deputies on a 22-mile high-speed chase, during which he threw a black bag out of his vehicle. The chase ended after a deputy deployed spike strips to stop the vehicle. A deputy searched Harbin and found a small baggie of heroin and a vape cartridge containing suspected THC liquid. Deputies also retrieved and searched the black bag Harbin had thrown from his vehicle during the pursuit. This bag was found to contain a loaded handgun, an extra magazine, and two knives. A subsequent search of Harbin's vehicle revealed approximately 20 grams of methamphetamine; multiple drug ledgers; three cellular phones; and $14,037 in cash, bundled in $1000 increments.

In March 2021, Harbin pled guilty to (1) possession with intent to distribute methamphetamine; (2) carrying a firearm during and in relation to a drug trafficking offense, and (3) being a felon in possession of a firearm. The United States Probation Office then prepared a Presentence Investigation Report ("PSR"). The PSR recommended that Harbin receive a career-offender sentencing enhancement under U.S.S.G. § 4B1.1, which provides that "[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." The PSR concluded Harbin satisfied this definition because he was at least 18 when he committed the instant federal crimes, those crimes included at least one controlled-substance offense, and he had two prior felony convictions for controlled-substance offenses—a 2011 Georgia conviction for conspiracy to distribute methamphetamine, and a 2014 Wyoming conviction for possession of marijuana with intent to deliver. Based on this enhancement, the PSR calculated an advisory guideline range of 292 to 365 months for Counts 1 and 3, as well as a mandatory minimum consecutive sentence of 60 months for Count 2.

Harbin did not object to the PSR, but requested a sentence below the advisory guideline range. The district court ultimately decided to vary downward from the advisory range based on (1) a policy disagreement with an enhancement for unlawful importation, and (2) the consecutive nature of the 60-month minimum sentence on Count 2. The court accordingly sentenced Harbin to a below-guidelines sentence of 220 months on Count 1 and a concurrent sentence of 120 months (the statutory maximum sentence) on Count 3, followed by a consecutive 60-month sentence on Count 2.

On appeal, Harbin challenges only the district court's application of the § 4B1.1 enhancement, arguing this enhancement does not apply because his Wyoming marijuana conviction cannot be defined as a controlled-substance offense due to intervening changes in the state's definition of marijuana.

III. Analysis

Because Harbin did not raise this objection to his sentence below, it is subject to review only for plain error. United States v. Archuleta , 865 F.3d 1280, 1290 (10th Cir. 2017). "We will find plain error only when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (quotations omitted). To show that an error is plain, Harbin "must demonstrate either that this court or the Supreme Court has resolved these matters in his favor, or that the language of the relevant statutes [or guidelines] is clearly and obviously limited to the interpretation [he] advances." United States v. Fagatele , 944 F.3d 1230, 1239 (10th Cir. 2019) (citation and quotation omitted). "In the absence of Supreme Court or circuit precedent directly addressing a particular issue, a circuit split on that issue weighs against a finding of plain error." United States v. Salas , 889 F.3d 681, 687 (10th Cir. 2018) (quotation omitted).

As pertinent here, the sentencing guidelines define a controlled-substance offense as "an offense under ... state law, punishable by imprisonment for a term exceeding one year, that prohibits ... the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 4B1.2(b).¹ Harbin argues that because this definition uses the present tense verb "prohibits" and because sentencing courts must apply the version of the guidelines in effect at the time of the federal sentencing, the term "controlled substance" must be defined by reference to current law, meaning the state's controlled-substance law at the time of the federal sentencing. Accordingly, he asserts that the sentencing court must compare the elements of the statute of conviction with the state's current controlled-substances law. If the statute of conviction had a broader scope than the current state law, he argues, then a conviction under the former version of the controlled-substances statute does not qualify as a controlled-substance conviction for purposes of §§ 4B1.1 and 4B1.2(b).

Wyoming's definition of marijuana included hemp at the time of Harbin's 2014 conviction for possession of marijuana with intent to deliver. At the time of his federal sentencing, however, Wyoming defined marijuana more narrowly to exclude hemp. Accordingly, because he could have been convicted of possessing a substance that is no longer criminalized by Wyoming, Harbin contends his prior marijuana conviction no longer qualifies as a prior controlled-substance conviction under §§ 4B1.1 and 4B1.2(b). For support, he cites to cases from other circuits and to a recent decision from this circuit involving an enhancement under the Armed Career Criminal Act ("ACCA"). For the reasons discussed below, we conclude that none of these cases satisfy Harbin's burden of demonstrating a clear or obvious error in the district court's application of the § 4B1.1 enhancement in this case.

The circuits have split on the question of how to define controlled-substance offenses under §§ 4B1.1 and 4B1.2(b). See Guerrant v. United States , ––– U.S. ––––, 142 S. Ct. 640, 211 L.Ed.2d 522 (2022) (Sotomayor, J., statement on denial of certiorari). Some circuits have held or assumed that the term "controlled substance" refers only to substances defined in the federal Controlled Substances Act ("CSA"), while several other circuits, including this circuit, have held that a state drug conviction may be considered a controlled-substance offense under the career-offender guideline even if the state criminalizes substances that are not listed in the CSA. See id. (collecting cases); see also United States v. Jones , 15 F.4th 1288, 1294 (10th Cir. 2021) ("[B]y not referencing the Controlled Substance Act definition in § 4B1.2(b), the Commission evidenced its intent that the enhancement extend to situations in which the state-law offense involved controlled substances not listed in the Controlled Substance Act.").²

When the question of timing has arisen in other circuits, the circuits that apply a federal definition to § 4B1.1 have held that the current federal definition controls, rather than the federal definition that was in place at the time of the state drug conviction. See United States v. Bautista , 989 F.3d 698, 704 (9th Cir. 2021) ; United States v. Abdulaziz , 998 F.3d 519, 524 (1st Cir. 2021). Accordingly, these circuits compare the elements of the statute of conviction with the current version of the CSA and do not treat a prior conviction as a controlled-substance offense if the statute of conviction encompassed conduct that is not currently criminalized by the CSA. See Bautista , 989 F.3d at 704 ; Abdulaziz , 998 F.3d at 524. In circuits that do not define "controlled substance" by reference to the CSA, by contrast, every circuit to reach the timing question has held that "the proper point of reference for establishing the status of the prior offense as a controlled substance felony is the point at which the defendant's guilt was established." United States v. Clark , 46 F.4th 404, 412 (6th Cir. 2022) ; see also United States v. Perez , 46 F.4th 691, 703 (8th Cir. 2022) ("[T]his court has also held that whether a prior state conviction is a controlled substance offense for Guidelines purposes is based on the law at the time of conviction, without reference to current state law.").

In rejecting the position Harbin urges us to adopt in this case, the Sixth and...