U.S. v. King

• Decision Date: 14 February 2008
• Docket Number: No. 07-1012.,07-1012.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee KING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

516 F.3d 425

UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee KING, Defendant-Appellant.

No. 07-1012.

United States Court of Appeals, Sixth Circuit.

Argued: December 5, 2007.

Decided and Filed: February 14, 2008.

ARGUED:

Sharon A. Turek, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellant. Jennifer L. McManus, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

ON BRIEF:

Sharon A. Turek, Federal Public Defender's Office, Grand Rapids, Michigan, for Appellant. Raymond E. Beckering, III, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before: GUY, MOORE, and GILMAN, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

In a matter of first impression for this court, we are asked to determine whether a court can consider only offenses that took place within a limited time period when considering what offenses qualify as a "prior conviction[ ] for a similar offense," under 2006 U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 2D1.1(a)(1). Robert King ("King") pleaded guilty to the distribution of fentanyl¹ resulting in death in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). When calculating King's base offense level, the district court considered King's 1984 conviction for delivery of marijuana to be a "prior conviction[ ] for a similar offense," U.S.S.G. § 2D1.1(a)(1), which set King's base offense level at 43. On appeal, King claims that § 2D1.1 contains implicit time limits that restrict the convictions that can be used, making his 1984 conviction too old to count under § 2D1.1(a)(1). According to King, the district court should have instead set his base offense level at 38 under § 2D1.1(a)(2). Today, we hold that § 2D1.1(a)(1) does not contain any implicit time limitations; therefore, the district court did not err when it considered King's 1984 marijuana-delivery conviction. For the reasons explained below, we AFFIRM King's sentence.

I. BACKGROUND

The factual basis of King's conviction is not in dispute and merits only a brief summary. King's indictment was based on King's fentanyl distribution leading to two deaths. On January 8, 2005, Emily Waskiewicz ("Waskiewicz") met King at the home of a mutual acquaintance, and there King provided Waskiewicz with methadone and fentanyl. The next morning Waskiewicz was dead. The cause of death was "from mixed drug toxicity of methadone and fentanyl." Joint Appendix ("J.A.") at 92 (Presentence Report ("PSR") ¶ 41). While the police were investigating Waskiewicz's death, King's fentanyl distribution again led to tragedy. On October 1, 2005, King gave fentanyl powder to Garry Sneller ("Sneller"). The next day, King discovered that Sneller had died from a drug overdose, and subsequent tests revealed a lethal level of fentanyl in Sneller's body.

On October 27, 2005, a grand jury indicted King for knowingly distributing methadone and fentanyl that resulted in the death of Waskiewicz, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). On December 20, 2005, the grand jury delivered a superseding indictment that added a second count of distribution and possession with intent to distribute fentanyl, resulting in the death of Sneller, as well as a third count of conspiracy to possess with intent to distribute and distribute oxycodone. On June 27, 2006, the grand jury delivered a second superseding indictment splitting into two separate counts what had initially been the single count relating to Sneller's death. On August 14, 2006, the district court dismissed the Sneller-related count of possession with intent to distribute fentanyl that resulted in Sneller's death, leaving the Sneller-related count for distribution of fentanyl. Subsequently, King reached an agreement with the government, and on August 15, 2006, King pleaded guilty to the count of distribution of fentanyl that resulted in the death of Sneller. As part of the plea agreement, the government agreed to move to dismiss all other charges.

King's PSR calculated his sentence using § 2D1.1(a)(1), which imposes a base offense level of 43 when the defendant has a conviction for a prior similar offense. This is in contrast to § 2D1.1(a)(2), which imposes a base offense level of 38 when the defendant does not have a conviction for a prior similar offense. The government contended that a 1984 conviction for delivery of marijuana counted as a conviction for a prior similar offense.² King objected, claiming that a prior offense triggers § 2D1.1(a)(1) only when it is recent enough to count in calculating the criminal history category under U.S.S.G. Chapter 4 as well. King argued that "the default position is that to be an eligible predicate, it must score criminal history points under Chapter 4." J.A. at 60 (Dec. 20, 2006, Sent. Hr'g at 5:6-17). Because the 1984 conviction was too old to count in calculating the criminal history category, see J.A. at 110 (PSR ¶ 134); U.S.S.G. § 4A1.2(e) (setting time limits of ten and fifteen years for offenses used in calculating criminal history), King urged the district court not to use the 1984 conviction when calculating the base offense level under § 2D1.1(a)(1). The district court concluded that a plain reading of the Guidelines showed that "there appears to not be a time period" that would limit the scope of § 2D1.1(a)(1). J.A. at 62 (Sent. Hr'g at 7:3-17). The district court then set King's base offense level at 43.

On December 21, 2006, the district court sentenced King to a 288-month term of imprisonment, and King filed a timely appeal.

II. DISCUSSION

A. Standard of Review

"We review de novo the sentencing court's interpretation of the Sentencing Guidelines and statutes, and we review for clear error its factual findings." United States v. Corrado, 304 F.3d 593, 607 (6th Cir.2002), cert. denied, 537 U.S. 1238, 123 S.Ct. 1366, 155 L.Ed.2d 207 (2003).

B. Interpreting § 2D1.1

King asserts that the time limits that would bar a 1984 conviction from consideration under the criminal history category provisions of § 4A 1.2(e)³ also apply to exclude stale convictions under § 2D1.1(a)(1). King argues that, as a default rule, "only convictions that qualify for criminal history points generally should be used as predicate offenses to increase base offense levels." Appellant Br. at 12. We conclude that both the text of the Guidelines and other circuits' conclusions contradict King's arguments.

King puts forward several arguments, based on both Chapters 2 and 4 of the U.S.S.G., to explain why we should extend the time limits of § 4A1.2(e) to Chapter 2. First; King contends that the text of § 4B1.4, the Guidelines version of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), makes it clear that § 4A1.2(e) creates a default time limit for the entire U.S.S.G. King points to § 4B1.4 because an application note for that provision states that § 4A1.2's time limits do not apply; according to King, the disclaimer of § 4A1.2's reach must mean that § 4A1.2 would otherwise serve as the default rule. An application note to § 4B 1.4 makes it clear that "the time periods for the counting of prior sentences under § 4A1.2" are not "applicable to the determination of whether a defendant is subject to an enhanced sentence under 18 U.S.C. § 924(e)." U.S.S.G. § 4B1.4 cmt. n. 1. Yet even if § 4A1.2(e) does create a default time-limit within Chapter 4, there is no reason to believe that a limit in a chapter on criminal history would necessarily span all other chapters. Section 4B1.4's explicit disclaimer of § 4A1.2's time limits does not prove the existence of a default time limit in § 2D1.1(a)(1) because not only is § 4B1.4 in close proximity to § 4A1.2, but also § 4B1.4 explicitly references Part A of Chapter 4. See U.S.S.G. § 4B1.4(c) ("The criminal history category for an armed career criminal is the greatest of . . . the criminal history category from Chapter Four, Part A. . . ."). Thus, the decision to disclaim § 4A1.2's time limits within § 4B1.4 may not in fact establish § 4A1.2's role as a default and may instead have more to do with the Sentencing Commission's ("Commission") need to ensure that the Guidelines are clear when one provision references another.

The Seventh Circuit, in addressing this argument, also concluded that § 4B1.4's disclaimer of § 4A1.2's time limits does not mean that the time limits of § 4A1.2 are the default rule in Chapter 2:

The fact that § 4B1.4 (Armed Career Criminal) makes explicit that the 15-year limit does not apply to that section is not to the contrary. The Sentencing Commission's explicit rejection of the 15-year limit in this section does not mean that the Commission intended to apply the 15-year limit in sections that say nothing about such a limit. Unlike § 2L1.2, § 4B1.4 is in the same chapter as the criminal history section. Moreover, § 4B1.4(c)(1) specifically utilizes the criminal history calculation of Chapter 4, Part A. Thus, clarity demanded that the Commission explicitly state that the time-period limitation did not apply when determining whether a defendant qualifies for application of § 4B1.4. The fact that the Commission was explicit in a section where explicitness was particularly necessary does not indicate that, unless explicitly rejected, the time limit always applies. No such considerations of clarity would naturally lead to the explicit rejection of this time limit in § 2L1.2(b).

United States v. Gonzalez, 112 F.3d 1325, 1331 (7th Cir.) (citation omitted), cert. denied, 522 U.S. 962, 118 S.Ct. 396, 139 L.Ed.2d 309 (1997). We find this analysis persuasive, and we also conclude that the rejection of the time limit in § 4B1.4 does not mean that § 4A1.2(e) applies as a default in Chapter 2.

King's contention that the time limits of § 4A1.2(e) are a default, in Chapter 2 is further weakened because some provisions of Chapter 2 explicitly adopt the time limits of § 4A1.2(e). If § 4A1.2(e) applied as an unstated background rule, the...