United States v. Ward

972 F.3d 364

UNITED STATES of America, Plaintiff – Appellee,

v.Timothy A. WARD, Defendant – Appellant.

No. 18-4720

United States Court of Appeals, Fourth Circuit.

Argued: October 30, 2019

Decided: August 20, 2020

ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Alexandria, Virginia, Valencia D. Roberts, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Heather Hart Mansfield, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Before GREGORY, Chief Judge, KEENAN, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Keenan joined. Chief Judge Gregory wrote an opinion concurring in the judgment.

RICHARDSON, Circuit Judge:

In 2018, Timothy Ward pleaded guilty to one count of distributing cocaine in violation of 21 U.S.C. § 841. Because Ward was thrice before convicted of a felony "controlled substance offense," the district court applied a career-offender enhancement to Ward's sentence. U.S.S.G. § 4B1.1(a). As a result, Ward faced a Federal Sentencing Guidelines' range of 151 to 188 months' imprisonment—more than six times the 24 to 30 months Guidelines' range applicable without the enhancement. Ultimately, the district court imposed a sentence of 10 years' imprisonment.

According to Ward, his career-offender designation was erroneous. He argues that his two Virginia convictions for possession with the intent to distribute heroin do not qualify as controlled substance offenses under the Guidelines. In Ward's view, for a state conviction to qualify as a "controlled substance offense," the "controlled substances" covered under the state law of conviction must be coextensive with those listed in the federal Controlled Substances Act. And because Virginia law defines controlled substances more broadly than federal law, his Virginia conviction does not trigger the career-offender enhancement.

We disagree. Ward's Virginia convictions for possession with the intent to distribute heroin fall within the Guidelines' categorical definition of a "controlled substance offense." So we hold that Ward's two convictions under Va. Code § 18.2-248 each qualify as a "controlled substance offense" that may trigger the career-offender enhancement, and we affirm.

I. Background

This case arose from a straightforward "buy-bust" operation. In 2017, an informant bought 0.1645 grams of cocaine from Ward. Based on this controlled drug buy, Ward was arrested and indicted by federal prosecutors. He pleaded guilty to the distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

This was not Ward's first time selling drugs. In 2001, he was convicted in federal court of possessing crack cocaine with the intent to distribute and sentenced to 84 months' imprisonment. Within six months of release, Ward's supervised release was revoked. Then, within nine months of his next release, Ward was again arrested for two heroin offenses in Virginia in violation of Va. Code § 18.2-248. He was convicted of both offenses and released from imprisonment on those charges in 2014, less than three years before the cocaine sale that would lead to this appeal.

Based on these prior offenses, a federal probation officer designated Ward a "career offender" under § 4B1.1 of the Federal Sentencing Guidelines : Ward was at least 18 years old when he committed this federal controlled substance offense in 2017, and he had "at least two prior felony convictions of a controlled substance offense." J.A. 159.¹ The career-offender designation did not impact Ward's criminal-history category. But it did increase his base offense level from 12 to 32. After credit for accepting responsibility, Ward faced a Guidelines' range of 151 to 188 months' imprisonment, more than six times the 24 to 30 months that Ward would have faced without the enhancement.

At sentencing, Ward objected to the career-offender designation. He conceded that his prior federal conviction counted as a "controlled substance offense." But he argued that his two Virginia convictions were not predicate controlled substance offenses under the Sentencing Guidelines.

The district court rejected Ward's argument and found that Ward's two prior Virginia heroin convictions counted as "controlled substance offense[s]" triggering the career-offender enhancement. The district court then granted in part Ward's motion for a downward departure from the Guidelines' range and imposed a sentence of 10 years in prison followed by 3 years of supervised release. Ward timely appealed.

II. Discussion

We review a district court's sentencing decisions for abuse of discretion. United States v. Torres-Reyes , 952 F.3d 147, 151 (4th Cir. 2020). In doing so, we consider both the procedural and substantive reasonableness of a sentence. Id. Ward limits his appeal to the former, arguing that, because the district court improperly designated him a career offender, his sentence is procedurally unreasonable. See Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Whether Ward's Virginia convictions count as "controlled substance offense[s]" that trigger the career-offender enhancement is a "legal issue we review de novo." United States v. Dozier , 848 F.3d 180, 182–83 (4th Cir. 2017).

We consider this question under the so-called "categorical approach." This approach is categorical in that we ask whether the offense of conviction—no matter the defendant's specific conduct—necessarily falls within the Guidelines' description of a "controlled substance offense." To do so, we set aside the particulars of Ward's actions underlying his convictions, focusing instead on "the fact of conviction and the statutory definition of the prior offense." Id. at 183 (quoting United States v. Cabrera-Umanzor , 728 F.3d 347, 350 (4th Cir. 2013) ). We then compare the elements of the prior offense with the criteria that the Guidelines use to define a "controlled substance offense." See Shular v. United States , ––– U.S. ––––, 140 S. Ct. 779, 783, 206 L.Ed.2d 81 (2020) (asking "whether the conviction meets [the relevant] criterion").²

In Ward's case, this approach requires us to identify the elements of the Virginia law of conviction and the criteria the Federal Sentencing Guidelines use to define a "controlled substance offense." And we ask whether the two categorically match.³

Ward was convicted of violating Virginia Code § 18.2-248, which makes it "unlawful for any person to manufacture, sell, give, distribute, or possess with intent to manufacture, sell, give or distribute a controlled substance or an imitation controlled substance." Ward does not dispute that the elements of a violation of § 18.2-248 require proving that the defendant committed one of the actions—manufacture, sell, give, distribute, or possess with intent to manufacture, sell, give, or distribute—with an identified controlled substance. See Cucalon , 958 F.3d at 251.

The key question for our consideration is whether these elements categorically meet the criteria that the Guidelines use to define a "controlled substance offense." We interpret the Sentencing Guidelines using our ordinary tools of statutory construction. United States v. Rouse , 362 F.3d 256, 262 (4th Cir. 2004). And "[a]s in all statutory construction cases," we start with the plain text of the Guidelines and " ‘assume that the ordinary meaning of [the statutory] language’ " controls.

Marx v. General Revenue Corp. , 568 U.S. 371, 376, 133 S.Ct. 1166, 185 L.Ed.2d 242 (2013) (quoting Hardt v. Reliance Standard Life Insurance Co. , 560 U.S. 242, 251, 130 S.Ct. 2149, 176 L.Ed.2d 998 (2010) ); see Park 'N Fly, Inc. v. Dollar Park & Fly, Inc. , 469 U.S. 189, 194, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985).

Section 4B1.2(b) of the Guidelines defines a "controlled substance offense" as:

[A]n 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.

First, we note that only an "offense under federal or state law" may trigger the enhancement. An "offense" is, of course, "a breach of law." Offense , 10 Oxford English Dictionary 724 (2d ed. 1989); Offense , Black's Law Dictionary 1300 (11th ed. 2019) ("a violation of the law; a crime"). The noun, "offense," is then modified by a prepositional phrase: "under federal or state law." § 4B1.2(b). The preposition "under" means "[b]eneath the rule or domination of; subject to." Under , 18 Oxford English Dictionary 949 (2d ed. 1989).⁴ So to satisfy the ordinary meaning of "offense," there must be a violation or crime "subject to" either "federal or state law."

This "offense under federal or state law" must satisfy two criteria: (1) the offense must be "punishable by imprisonment for a term exceeding one year" and (2) the federal or state law must (a) prohibit the manufacture, import, export, distribution, or dispensing of a controlled substance, or (b) prohibit the possession of a controlled substance with intent to manufacture, import, export, distribute, or dispense. § 4B1.2(b).

The first criterion, "punishable by imprisonment for a term exceeding one year," requires the maximum sentence for the "offense" to be more than one year. To determine whether the "offense" has a maximum sentence of more than one year, we look to possible penalties for that offense as provided by the relevant "federal or state law" of conviction....