United States v. Hughes

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UNITED STATES OF AMERICA v. LITEEF HUGHES

CRIMINAL ACTION No. 5:22-cr-00105

United States District Court, S.D. West Virginia, Beckley

January 16, 2024

MEMORANDUM OPINION AND ORDER

Frank W. Volk, United States District Judge

Pending are two objections to the Presentence Investigation Report (“PSR”). The Government objects to the United States Probation Office's (“Probation”) failure to recommend Defendant Liteef Hughes be classified as a career offender under U.S.S.G. § 4B1.1. Mr. Hughes objects to the two-level enhancement recommended by Probation for possession of a dangerous weapon under U.S.S.G. § 2D1.1(b)(1).

I.

On September 1, 2022, Mr. Hughes pled guilty to Count One of the Indictment charging him with distributing a quantity of cocaine base, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a). [ECF 16]. Mr. Hughes has two prior felony convictions for possession with intent to distribute cocaine in 2004 and 2009. [PSR ¶¶ 41 43]. These prior convictions for possession with intent to distribute cocaine were in violation of Maryland Criminal Code § 5-602. [ECF 60]. Additionally, during the search of Mr. Hughes' residence that led to his arrest for the underlying offense, two firearms were found on or near another person. That person was located near the entrance to Mr. Hughes' bedroom, where Mr. Hughes was located with the cocaine and drug proceeds. [PSR ¶ 30].

When determining which enhancements were applicable to Mr. Hughes Probation concluded the career offender sentencing enhancement was inapplicable based on United States v Campbell, 22 F.4th 438 (4th Cir. 2022). [PSR at 8, n.1]. Probation, however, did recommend a two-level enhancement to Mr. Hughes' base offense level for possession of a dangerous weapon under U.S.S.G. § 2D1.1(b)(1). [PSR ¶ 30]. As noted, law enforcement located two firearms on or near another person who was present and near Mr. Hughes, the cocaine, and drug proceeds. [PSR Ad. at ¶ 22].

Prior to sentencing, the Government and Mr. Hughes submitted sentencing memoranda. The Government asserted Mr. Hughes should be classified as a career offender based upon his current conviction and two prior, alleged predicate Maryland convictions for possession with intent to deliver controlled substances. Additionally, the Government contends Probation correctly recommended the two-level enhancement for possession of a firearm. Mr. Hughes denies he is a career offender, asserting the instant offense is not a controlled substance offense and the prior state convictions for possession with intent to distribute do not qualify as predicates. Mr. Hughes also contends the two-level enhancement for possession of a firearm should not apply as Mr. Hughes never possessed the firearms and Application Note 11(A) is at odds with U.S.S.G. §2D1.1(b)(1).

On December 6, 2022, the Court continued Mr. Hughes' sentencing pending resolution of whether, in light of Campbell, an offense under 21 U.S.C. § 841(a)(1) qualifies as a controlled substance offense under U.S.S.G. § 4B1.2. Following our Court of Appeal's decision in United States v. Groves, 65 F.4th 166 (4th Cir. 2023), the Court directed the parties to file supplemental briefing regarding whether Mr. Hughes qualifies as a career offender.

In its supplemental briefing the Government maintains that Mr. Hughes should be considered a career offender. The supplemental briefing covers little new ground, except for polishing Mr. Hughes' contention respecting the 2004 and 2009 predicate cocaine convictions. He notes the statute of conviction for the prior offenses defined cocaine more broadly than the current Maryland statutory offense. Specifically, in 2004 and 2009, Maryland criminalized ioflupane as a derivative of ecgonine; it no longer does so. The contention is thus that our Court of Appeal's reasoning in United States v. Hope, 28 F.4th 487, 504 (4th Cir. 2022), read in conjunction with United States v. Ward, 972 F.3d 364, 371 (4th Cir. 2020), bar predicate treatment of the 2004 and 2009 convictions.

Upon inquiry from the Court, Mr. Hughes asserts his 2004 and 2009 convictions were for possession with intent to distribute cocaine in violation of Maryland Code, Criminal Law § 5-602. The Government agrees and has furnished the charging documents for the two convictions.

II.

A. Career Offender

There are three necessary requirements for classification as a career offender under the Guidelines:

(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. The Guidelines define the phrase “controlled substance offense” in the following manner:

The term “controlled substance offense” means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that- (1) 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.

Id. § 4B1.2(b)(1). The term “controlled substance offense” includes “the offenses of aiding and abetting, attempting to commit or conspiring to commit any such offense.” Id. § 4B1.2(d).

The “categorical approach” is used to determine whether an offense qualifies as a “controlled substance offense.” United States v. Davis, No. 20-4433, 2023 WL 4876392, at *10 (4th Cir. 2023) (citing United States v. Ward, 972 F.3d 364, 368 (4th Cir. 2020)). The analysis “focus[es] on the elements of the prior offense rather than [on] the conduct underlying the conviction.” Id. (alterations in original) (quoting United States v. Dozier, 848 F.3d 180, 183 (4th Cir. 2017) (internal quotation marks omitted)). If the elements of the prior offense criminalize conduct broader than the Guidelines definition of a controlled substance offense, that prior offense does not qualify as a controlled substance offense. Id. (citing United States v. Campbell, 22 F.4th 438, 441 (4th Cir. 2022)).

“This approach is altered for ‘divisible' statutes,” namely those “statutes that ‘list elements in the alternative[ ] and thereby define multiple crimes.'” Dozier, 848 F.3d at 183 (quoting Mathis v. United States, 579 U.S. 500, 505 (2016)). “In such circumstances, the sentencing court may apply the modified categorical approach and consult ‘a limited class of documents'--otherwise known as Shepard documents--‘to determine what crime, with what elements, a defendant was convicted of.'” Id. (quoting Mathis, 579 U.S. at 505).

Section 5-602 provides pertinently that “a person may not: (1) distribute or dispense a controlled dangerous substance; or (2) possess a controlled dangerous substance other than cannabis in sufficient quantity reasonably to indicate under all circumstances an intent to distribute or dispense a controlled dangerous substance.” Md. Code, Crim. Law § 5-602(a). The text thus appears to “list elements in the alternative[ ],” Dozier, 848 F.3d at 183 (quoting Mathis, 579 U.S. at 505), distinguishing the crime of distribution from possession with intent to distribute. But the inquiry does not there end.

The Court should also examine Maryland “state court decisions to discern whether those courts treat the listed alternatives as elements or means.” United States v. Furlow, 928 F.3d 311, 319-20 (4th Cir. 2019). Those decisions confirm the textual analysis: distribution and possession with intent to distribute are separate offenses. See Hankins v. State, 565 A.2d 686, 691, 80 Md.App. 647, 657 (Ct. Spec. App. 1989) (referring to distribution and possession with intent to distribute as “two crimes” and noting that distribution “requires the further step, of course, of actually transferring the substance to another”); see also Shortz v. State, No. 0346, 2017 WL 26130, at *17 (Md. Ct. Spec. App. Jan. 3, 2017) (citing Hankins favorably). In addition to divisibility by offense conduct, § 5-602(a) is also divisible by drug type. Maryland defines a controlled dangerous substance as “a drug or substance listed in Schedule I through Schedule V” Md. Code, Crim. Law § 5-101(g)(1)(i). The “penalty for a violation of § 5-602 depends on the substance distributed or possessed with intent to distribute.” United States v. Hill, 471 Fed.Appx. 143, 161-62. (4th Cir. 2012) (applying the modified categorical approach, in part, “[b]ecause the maximum penalty for a violation of Maryland's drug distribution statute depends on the drug distributed”).

Given the divisibility analysis, the modified categorical approach applies. Consequently, Shepard documents may be consulted in determining the crimes of conviction and their elements. For both the 2004 and 2009 convictions, the indictments provide Mr. Hughes unlawfully possessed “a controlled dangerous substance of Schedule #II, to wit: Cocaine, which is a Narcotic Drug, in sufficient quantity reasonably to indicate under all circumstance an intent to distribute the same in violation of Criminal Law Article, Section 5-602 of the Annotated Code of Maryland.” [ECF 62-1 at 1-2, 6-7] (emphasis added). The Shepard documents establish that Mr. Hughes' 2004 and 2009 offenses were for possession with intent to distribute cocaine in violation of § 5-602(a).^[1]

The Court next determines whether the offenses are covered by the Guidelines' definition of a “Controlled Substance Offense.” The Guidelines provide that “[t]he term ‘controlled substance offense' means an offense...