United States v. Deontae Wilson

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 16, 2020
• Docket: 20-3256
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 20a0652n.06

No. 20-3256

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, ) Nov 16, 2020 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE DEONTAE WILSON, ) NORTHERN DISTRICT OF ) OHIO Defendant-Appellant. ) )

Before: KETHLEDGE, DONALD, and LARSEN, Circuit Judges.

LARSEN, Circuit Judge. Deontae Wilson pleaded guilty to four charges stemming from

his involvement in the sale of cocaine base. This was not Wilson’s first foray into drug trafficking,

so the district court sentenced him as a career offender based on two prior convictions for

controlled substance offenses. Wilson challenges his status as a career offender. We AFFIRM.

I.

Deontae Wilson sold crack cocaine out of his auto body shop in Wickliffe, Ohio. He was

arrested after making three sales to a confidential informant. A federal grand jury charged Wilson

and a co-conspirator with one count of conspiracy to distribute and possess with intent to distribute

cocaine base, two counts of distribution of cocaine base, and one count of possession with intent

to distribute cocaine base. See 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B)–(C). Wilson pleaded guilty

to all four counts, without a plea agreement. No. 20-3256, United States v. Wilson

The district court sentenced Wilson as a career offender under U.S.S.G. § 4B1.1(a) based

on his two prior convictions for drug trafficking under Ohio Rev. Code (O.R.C.) § 2925.03(A)(2).1

After including his career offender designation but awarding a three-level reduction for acceptance

of responsibility, the district court calculated Wilson’s advisory Guidelines range as 188 to 235

months, in accordance with the Presentence Investigation Report. The district court ultimately

varied downward, however, sentencing Wilson to 120 months’ imprisonment. Wilson appeals,

challenging only the career offender designation.

II.

Under the 2018 U.S. Sentencing Guidelines manual, 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.” U.S.S.G. § 4B1.1(a).

We review a district court’s determination that a prior offense qualifies as a controlled substance

offense de novo. See United States v. Montanez, 442 F.3d 485, 488 (6th Cir. 2006)

Wilson argues that, after our decision in United States v. Havis, 927 F.3d 382 (6th Cir.

2019) (en banc) (per curiam), his prior Ohio drug trafficking offenses do not qualify as “controlled

substance offenses,” as that term is defined in U.S.S.G. § 4B1.2(b). But a panel of this court

recently considered and rejected the same argument in United States v. Smith, 960 F.3d 883, 887–

92 (6th Cir. 2020). Smith held that O.R.C. § 2925.03(A)(2) qualifies as a “controlled substance

offense,” id. at 892, and so forecloses Wilson’s argument.

1 Wilson suggests in his brief that his prior convictions were under § (A)(1) of O.R.C. § 2925.03 instead of § (A)(2). They were not. See R. 71, PageID 546. -2- No. 20-3256, United States v. Wilson

Wilson also argues that U.S.S.G. § 4B1.1(b)(2) as applied to him “is unconstitutional due

to vagueness and fundamental fairness.” Appellant Br. at 13. Wilson did not raise this objection

in the district court and so we review for plain error. To succeed on plain error review, Wilson

must show “(1) error (2) that ‘was obvious or clear,’ (3) that ‘affected defendant’s substantial

rights’ and (4) that ‘affected the fairness, integrity, or public reputation of the judicial

proceedings.’” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (quoting

United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)); see also Fed. R. Crim. P. 52(b).

Wilson cannot meet this standard.

In Beckles v. United States, the Supreme Court explained that “the void-for-vagueness

doctrine requires that a penal statute define the criminal offense with sufficient definiteness that

ordinary people can understand what conduct is prohibited and in a manner that does not encourage

arbitrary and discriminatory enforcement.” 137 S. Ct. 886, 892 (2017) (quoting Kolender v.

Lawson, 461 U.S. 352, 357 (1983)). But because the advisory Guidelines “merely guide the

exercise of a court’s discretion,” they “are not subject to a vagueness challenge under the Due

Process Clause.” Id.

Therefore, Wilson’s void-for-vagueness challenge is squarely foreclosed by Supreme

Court precedent, and he has not established any other due process violation. Finding that the

district court did not err in sentencing Wilson as a career offender, we AFFIRM.

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