439 F.3d 320 (6th Cir. 2006), 04-5981, United States v. Galloway

Docket Nº:04-5981.
Citation:439 F.3d 320
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Eriki GALLOWAY, Defendant-Appellee.
Case Date:February 27, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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439 F.3d 320 (6th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellant,

v.

Eriki GALLOWAY, Defendant-Appellee.

No. 04-5981.

United States Court of Appeals, Sixth Circuit.

February 27, 2006

        Argued: July 27, 2005.

        Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 02-20355—Bernice B. Donald, District Judge.

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        ARGUED:

        David C. Henry, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellant.

        Kemper B. Durand, THOMASON, HENDRIX, HARVEY, JOHNSON & MITCHELL, Memphis, Tennessee, for Appellee.

        ON BRIEF:

        David C. Henry, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellant.

        Kemper B. Durand, THOMASON, HENDRIX, HARVEY, JOHNSON & MITCHELL, Memphis, Tennessee, for Appellee.

        Before: ROGERS and SUTTON, Circuit Judges; FORESTER, District Judge.[*]

        OPINION

        KARL FORESTER, Senior District Judge.

        The United States appeals the district court's decision not to sentence Eriki Galloway as a career offender under § 4B1.1 of the United States Sentencing Guidelines. For the reasons set forth below, we REVERSE and REMAND for resentencing.

        I.

        On September 18, 2002, a Federal Grand Jury sitting in the Western District of Tennessee returned a one count indictment against Eriki Galloway charging that on or about September 5, 2002, in the Western District of Tennessee, Galloway did unlawfully, knowingly and intentionally possess with the intent to distribute a schedule II controlled substance, to wit: approximately 211 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). On January 15, 2003, Galloway entered a voluntary guilty plea to one count of possessing approximately 211 grams of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1). In exchange for his plea, the Government agreed to recommend that Galloway receive a sentencing reduction for acceptance of responsibility and that he be sentenced at the low end of his guideline range. The Presentence Investigation Report (PSR) prepared in Galloway's case recommended that he receive a three-level enhancement under U.S.S.G. § 4B1.1 for being a career criminal. This conclusion was based on Galloway's two prior felony convictions: (1) a 1989 conviction for unlawfully possessing a controlled substance with the intent to sell; and (2) a 1991 conviction of attempting to commit a felony. The PSR concluded that these two convictions were controlled substance violations as defined by § 4B1.2 of the Sentencing Guidelines. Galloway objected to

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the imposition of the career offender enhancement.

        The dispute in this case centers on Galloway's 1991 Tennessee conviction for attempt to commit a felony. In 1991, Galloway was indicted for unlawful possession of a controlled substance, hydromorphone, with intent to sell. However, Galloway later pled guilty to "attempt to commit a felony" under Tennessee Code Annotated § 39-12-101. The district court determined that Galloway's conviction for attempt to commit a felony was not a controlled substance offense. The district court concluded that neither the record of Galloway's conviction for "attempt to commit a felony" nor the statutory elements...

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