United States v. Wright

43 F. App'x 848
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 7, 2002
DocketNo. 00-4468
StatusPublished
Cited by12 cases

This text of 43 F. App'x 848 (United States v. Wright) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Wright, 43 F. App'x 848 (6th Cir. 2002).

Opinion

LAWSON, District Judge.

Section 4B1.1 of the United States Sentencing Guidelines classifies a defendant as a “career offender,” triggering a more se[849]*849vere sentence, if the defendant was at least eighteen years old when he committed the offense of conviction, the offense is a crime of violence or a controlled substance offense, and “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(3). The defendant in this appeal, who was found to be a career offender, challenges the district court’s determination that one of his prior drug convictions was “a controlled substance offense” as that term is defined by the Sentencing Guidelines. We believe that the district court’s determination was correct, and therefore affirm the defendant’s sentence.

I.

In April 1998 several law enforcement agencies in southern Ohio commenced a joint criminal investigation targeting McCoy Wright, III and others, based on information that these individuals were involved in the distribution of illegal controlled substances in Butler County, Ohio. As part of the investigation, a search warrant was executed at Wright’s residence in Middletown, Ohio on November 24, 1998 resulting in the seizure of approximately one pound of marijuana and $38,310 in cash. Although Wright was charged and convicted of possession of marijuana in Butler County as a result of the evidence found in the search, the criminal investigation continued. The officers gathered additional information from informants, corroborating witnesses, physical evidence obtained from trash pulls at the defendant’s Middletown residence, and court-ordered wiretaps.

Wright was arrested for the offenses in this case on September 9, 1999. On September 15, 1999 a grand jury returned a 10-count indictment charging him with conspiracy to distribute and possess with intent to distribute marijuana, cocaine and cocaine base (crack) in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A), along with nine other counts alleging the use of a telephone to facilitate the commission of a drug offense in violation of 21 U.S.C. § 843(b). Wright entered a guilty plea pursuant to a plea agreement and was sentenced on November 13, 2000 to 168 months in custody.

The district court calculated his sentence consistent with the recommendations in the presentence investigation report as follows. First, the court determined that the base offense level was 34, finding Wright accountable for at least 15 kilograms but less than 50 kilograms of cocaine. See U.S.S.G. § 2Dl.l(a)(3) and (e)(3). The district court further found that the defendant was a career offender under U.S.S.G. § 4B1.1, and therefore increased his offense level to 37. Then, pursuant to U.S.S.G. § 3E1.1, the district court decreased the adjusted offense level by three levels for acceptance of responsibility and then, pursuant to the government’s motion, by an additional four levels to level 30 due to the defendant’s substantial assistance in the prosecution of other individuals. See 18 U.S.C. § 3553(e); U.S.S.G. § 5A1.1. Wright was placed in criminal history category VI because of the career offender finding. See U.S.S.G. § 4B1.1.

The defendant filed several objections to the presentence report, including the one pertinent to this appeal in which he argued that one of his prior drug-related convictions was not a qualifying predicate offense allowing application of the career offender enhancement provisions of U.S.S.G. § 4B1.1. Although the defendant had no previous convictions for a crime of violence as defined in U.S.S.G. § 4B1.2(a), the presentence investigator reported that Wright had two “controlled substances of[850]*850fenses” under U.S.S.G. § 4B1.2(b) which occurred in the fall of 1989. The first conviction, which is not the object of the defendant’s argument, arose from a June 27, 1989 indictment charging Wright with one count of “Aggravated Trafficking” in cocaine in violation of Ohio Rev.Code § 2925.03(A)(1), and one count of “Complicity to Aggravated Trafficking” in cocaine in violation of Ohio Rev.Code § 2925.03(A)(2). Wright pleaded guilty to “Attempted Aggravated Trafficking” and was sentenced to six months in jail on September 27,1989.

The second conviction resulted from an indictment returned on June 14, 1989 charging violations of Ohio Rev.Code § 2925.03(A)(2). The indictment contained counts of “Trafficking in Marijuana,” and “Aggravated Trafficking” in cocaine, and was resolved by a guilty plea to two counts of “Attempted Aggravated Trafficking” for which the defendant received concurrent terms of six months in custody on September 27,1989.

The defendant argued in the district court that in order to qualify as a “controlled substance offense” for the purpose of the career offender enhancement Sentencing Guideline provision, the prior conviction must contain an element of distribution, importation, manufacture or possession with intent to do these things; simple possession will not suffice. The defendant observed that the statute under which he was convicted, although labeled “Attempted Aggravated Trafficking,” punishes both distribution and simple possession of controlled substances. The defendant then asserted that since the statute defines both qualifying and nonqualifying offenses, the sentencing court must look to the underlying conduct which, in the case of the June 14, 1989 indictment, amounted to nothing more than possession of cocaine and marijuana, and therefore the offense did not constitute a proper predicate offense under U.S.S.G. § 4B1.1.

The district court overruled the defendant’s objection, holding that “it is the name of the crime and the elements of the crime as set forth in the statute, and not the particulars of any particular crime that affect whether or not an offense is a controlled substance offense under the guide-, lines.” J.A. at 82.

The defendant filed a notice of appeal challenging this ruling. He also contends on appeal that the government failed to provide notice to the defendant under 21 U.S.C. § 851 of its intent to pursue a sentence enhancement, and therefore it may not rely on his prior convictions to enhance the sentence under the Sentencing Guidelines.

II.

When reviewing a sentence imposed by the district court, the sentencing court’s factual determinations are reviewed for clear error, while its legal conclusions, including the propriety of career offender status, are reviewed de novo. United States v. Butler, 207 F.3d 839, 842 (6th Cir.2000).

A.

Turning first to the question of the notice required by 21 U.S.C.

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