United States v. McDow, Criminal No.: 0:17-cr-01142-JMC-1

United States of America, v. DeMarco McDow, Defendant.

Criminal No.: 0:17-cr-01142-JMC-1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ROCK HILL DIVISION

December 14, 2018

ORDER AND OPINION

Before the court for review are Defendant DeMarco Dow's ("Defendant") objections to the Presentence Investigation Report ("PSR") filed on September 24, 2018.¹ (ECF No. 43.) The court overrules Defendant's first objection.

I. INTRODUCTION

On June 25, 2018, Defendant pleaded guilty to being a felon in possession of a firearm. (ECF Nos. 38, 42.) On September 24, 2018, the PSR was filed. (ECF No. 39.) The PSR indicates that on July 18, 2017, Defendant pleaded guilty as indicted to Possession with Intent to Distribute Cocaine Base.² (ECF No. 48 at 10 ¶ 29.) The PSR found that this conviction "is considered a controlled substance offense for purposes of U.S.S.G. § 2K2.1(a)," (id.), and that as a result, Defendant's base offense level is twenty (20). (Id. at 12-13 ¶ 43.) The PSR recommends Defendant's "Total Offense Level" is seventeen (17) after applying reductions for accepting responsibility. (Id. at 13 ¶¶ 50-51.) Finally, the PSR concludes that, "Based upon atotal offense level of 17 and a criminal history category of IV, the guideline imprisonment range is 37 months to 46 months." (Id. at 15 ¶ 69.) Defendant "objects to the [PSR] increasing his base offense level from a 14 to a 20 based on" his prior South Carolina conviction for Possession with Intent to Distribute Cocaine Base. (ECF No. 48-1 at 1.)

Section 2K2.1(a)(4)(A) of the United States Sentencing Guidelines ("Guidelines") provides for a base offense level of 20 if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense." (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] theelements 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 44-53-375(B) of the South Carolina Code Ann. (2017) provided,

A person who manufactures, distributes, dispenses, delivers, purchases, or otherwise aids, abets, attempts, or conspires to manufacture, distribute, dispense, deliver, or purchase, or possesses with intent to distribute, dispense, or deliver methamphetamine or cocaine base, in violation of the provisions of Section 44-53-370, is guilty of a felony and, upon conviction:

(1) for a first offense, must be sentenced to a term of imprisonment of not more than fifteen years or fined not more than twenty-five thousand dollars, or both;

(2) for a second offense, the offender must be imprisoned for not less than five years nor more than thirty years, or fined not more than fifty thousand dollars, or both;

(3) for a third or subsequent offense, the offender must be imprisoned for not less than ten years nor more than thirty years, or fined not more than fifty thousand dollars, or both.

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 thecategorical 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 44-53-375(B) can be violated by purchasing cocaine, it "does not meet the guideline definition of a controlled substance offense, as defined by U.S.S.G. § 4B1.2(b)." (ECF No. 48-1 at 1-2.) Defendant asserts section 44-53-375(B) "sets out a list of ways a defendant can violate [it]. Because th[is] statute sets out a single crime, a drug violation, that can be committed a number of different ways, [it] is not divisible. (Id. at 2.) Thus, Defendant argues, "Under the categorical approach, [section 44-53-375(B)] do[es] not qualify as a predicate offense[] under [U.S.S.G.] § 4 B1.2['s] definition of a 'controlled substance offense.'" (Id.)

Alternatively, Defendant argues that even if the court finds the modified categorical approach applies, the court should not rely on sentencing sheets to determine whether the offense Defendant pleaded guilty to meets the federal definition for a controlled substance offense. (Id. at 3.) Defendant asserts that his sentencing sheet refers to a statute of conviction—section 44-53-375—which prohibits the purchase of cocaine, and Defendant pleaded guilty "as indicted." (Id.) Because the sentencing sheet refers to the statute, Defendant contends it is not an appropriate basis for determining whether his conviction meets the definition for a controlled substance offense. (Id.)

The PSR asserts that S.C. Code Ann. § 44-53-375 is divisible, and therefore, the modified categorical approach applies. (ECF No. 48-1 at 4-6.) The PSR relies on the Fourth Circuit's unpublished opinions in United States v. Vinson, 340 F. App'x 882, 883 (4th Cir. 2009) ("Vinson claims that because the South Carolina statute under which he was convicted also criminalizesthe purchase of drugs, the district court needs to look beyond the statute to evaluate Vinson's conduct. We disagree."); United States v. Marshall, No. 16-4594, 2018 WL 4150855, at *8 (4th Cir. Aug. 29, 2018) ("[W]e conclude that South Carolina Code §§ 44-53-370 and 445 set forth alternative elements, and that, therefore, the statutes are subject to review under the modified categorical approach."); United States v. Rhodes, ...