U.S. v. Lipsey, 93-9076
| Decision Date | 27 December 1994 |
| Docket Number | No. 93-9076,93-9076 |
| Citation | 40 F.3d 1200 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David LIPSEY, Defendant-Appellant. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Donald F. Samuel, Garland, Samuel & Loeb, Atlanta, GA, for appellant.
Joe D. Whitley, U.S. Atty., Leo Eugene Reichert, Amy Levin Weil and Robert P. Marcovitch, Asst. U.S. Attys., for appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before KRAVITCH, DUBINA and BARKETT, Circuit Judges.
David Lipsey pleaded guilty to conspiracy to distribute marijuana, in violation of 21 U.S.C. Sec. 846. He was sentenced as a career offender to 292 months imprisonment, five years supervised release, and a $20,000 fine. On appeal, Lipsey contends that the district court erred by treating a prior state conviction as a controlled substance offense under Sentencing Guideline Sec. 4B1.1 and by basing his sentence on too large a quantity of drugs. We AFFIRM.
The guidelines provide that a defendant convicted of a controlled substance felony offense should be treated as a career offender if he has two prior controlled substance convictions. U.S.S.G. Sec. 4B1.1. A controlled substance offense is "an offense under a federal or state law prohibiting the ... distribution[ ] or dispensing of a controlled substance ... or the possession of a controlled substance ... with intent to.... distribute[ ] or dispense." U.S.S.G. Sec. 4B1.2(2).
The district court based Lipsey's career offender status in part on an underlying state conviction for possessing valium with intent to distribute. The indictment underlying the challenged conviction charged that Lipsey "did unlawfully possess and have under his control Diazepam a controlled substance ...; said possession being with intent to distribute said drug." Lipsey argues that the district court should have looked beyond the elements of the crime to the facts underlying his conviction. He suggests that although he pleaded guilty to the state offense, at the time he denied that he had any intent to distribute.
Although our circuit has not expressly decided whether a sentencing court may look beyond the elements of the offense to the underlying conduct in determining whether a prior state conviction may be counted as a predicate controlled substance offense, it has held, in addressing predicate crimes of violence under Sec. 4B1.2(1), that
requiring sentencing courts to conduct factual inquiries into the specific conduct underlying an earlier conviction would present significant practical problems.... We do not believe that Congress or the Commission were unmindful of these practical concerns and if they intended to require the sentencing court to participate in the equivalent of an ad hoc mini-trial, they would have provided at least some guidance.
United States v. Gonzalez-Lopez, 911 F.2d 542, 547 (11th Cir.1990), cert. denied, 500 U.S. 933, 111 S.Ct. 2056, 114 L.Ed.2d 461 (1991). The Fifth Circuit has decided the issue and has held that Sec. 4B1.2(2) does not allow for consideration of conduct underlying a conviction to determine whether that conviction qualifies as a "controlled substance offense." United States v. Gaitan, 954 F.2d 1005, 1011 (5th Cir.1992). Gaitan requires that the court focus upon the elements of the offense when determining whether a conviction qualifies. See Id. Gonzalez-Lopez, 911 F.2d at 547.
In light of these cases and the language of the guidelines, we hold that a court should look at the elements of the convicted offense, not the conduct underlying the conviction, in determining if a prior conviction is a controlled substance offense under Sec. 4B1.2(2). The elements of the state conviction at issue included having an intent to distribute or dispense the drug involved in the offense. Therefore, it was a controlled substance offense and could be used to support Lipsey's career offender status.
Lipsey also argues that the district court erred in holding him accountable for 1800 pounds of marijuana in determining relevant conduct pursuant to Sec. 1B1.3. He contends that 300 pounds should have...
To continue reading
Request your trial
-
Thomas v. United States, Case No. 8:13-CV-215-T-15MAP
...underlying the conviction, to determine if a prior conviction is controlled substance offense under § 4B1.2(b). United States v. Lipsey, 40 F.3d 1200, 1201 (11th Cir.1994). Florida statute § 893.13(1)(a) makes it "unlawful for any person to sell, manufacture, or deliver, or possess with int......
-
U.S.A v. Goodlow
...a court should "look at the elements of the convicted offense, not the conduct underlying the conviction." United States v. Lipsey, 40 F.3d 1200, 1201 (11th Cir. 1994) (per curiam). Under Alabama law, a person commits a crime of unlawful possession of marijuana in the first degree if "[h]e ......
-
Cabello v. US, 2:94 CV 349 JM.
...from the amount involved in Cabello's possession conviction. Even if the court could consider that amount, but see United States v. Lipsey, 40 F.3d 1200, 1201 (11th Cir.1994) (underlying conduct not considered when deciding what constitutes a § 4B1.1 "controlled substance offense"); United ......
-
United States v. Lange
...compare the definition in the Guidelines with the statutory offense, "not the conduct underlying the conviction." United States v. Lipsey , 40 F.3d 1200, 1201 (11th Cir. 1994). "We look to the plain language of the definitions to determine their elements," and we "need not search for the el......
-
Federal Sentencing Guidelines - James T. Skuthan and Rosemary T. Cakmis
...1270. 359. Id. at 1283. 360. Id. 361. 175 F.3d 899 (11th Cir. 1999). 362. Id. at 904-05. 363. Id. at 905 (quoting United States v. Lipsey, 40 F.3d 1200, 1201 (11th Cir. 1994)). 364. Id. In so finding the court relied on Ramsey v. INS, 55 F.3d 580 (11th Cir. 1995), wherein the court held tha......
-
Federal Sentencing Guidelines - Andrea Wilson
...983 (5th Cir. 1990); United States v. Morrison, 983 F.2d 730 (6th Cir. 1993). 147. U.S.S.G. Sec. 4B1.2(2). 148. United States v. Lipsey, 40 F.3d 1200, 1201-02 (11th Cir. 1994). 149. United States v. Gonzalez-Lopez, 911 F.2d 542, 547 (11th Cir. 1990), cert, denied, 500 U.S. 933, (1991). 150.......