U.S. v. Williams

• Decision Date: 17 April 2003
• Docket Number: No. 01-4551.,01-4551.
• Citation: 326 F.3d 535
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Baseem Shakir WILLIAMS, a/k/a Gregory Burgess, a/k/a Donnell Conklin, a/k/a Warren Kennedy, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

326 F.3d 535

UNITED STATES of America, Plaintiff-Appellee, v. Baseem Shakir WILLIAMS, a/k/a Gregory Burgess, a/k/a Donnell Conklin, a/k/a Warren Kennedy, Defendant-Appellant.

No. 01-4551.

United States Court of Appeals, Fourth Circuit.

Argued: June 6, 2002.

Decided: April 17, 2003.

ARGUED: Andrew Ross Mackenzie, Barrett & Mackenzie, L.L.C., Greenville, South Carolina, for Appellant. Rose Mary Parham, Assistant United States Attorney, Florence, South Carolina, for Appellee. ON BRIEF: J. Strom Thurmond, Jr., United States Attorney, Florence, South Carolina, for Appellee.

Before MICHAEL and GREGORY, Circuit Judges, and Robert R. BEEZER, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

Vacated and remanded by published opinion. Senior Judge BEEZER wrote the opinion, in which Judge MICHAEL and Judge GREGORY joined.

OPINION

BEEZER, Senior Circuit Judge.

Baseem Shakir Williams appeals the enhancement of his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Section 923(e) is a sentencing enhancement statute for persons who have at least three prior convictions for violent felonies or serious drug offenses. Williams contends that two of his three prior drug convictions cannot serve as predicate offenses under § 924(e) because they were not "serious drug offenses."

We have jurisdiction under 18 U.S.C. § 3742. We conclude that Williams's sentence should be vacated because neither one of his two New Jersey convictions meet the definition of a serious drug offense under § 924(e).

I

Williams was indicted by a federal grand jury for possessing a firearm transported in interstate commerce after having been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g).¹ Williams pleaded guilty to the charge. As part of the plea agreement, the parties agreed that Williams could contest any use of prior convictions to enhance his sentence under 18 U.S.C. § 924(e).

The Presentence Report ("PSR") stated that three of Williams's prior drug convictions qualified him as an armed career criminal under § 924(e) and U.S.S.G. § 4B1.4(b)(3)(B). According to the PSR, Williams's guidelines range sentence, with the § 924(e) enhancement included, was between 180 and 210 months.

Williams objected to the PSR's conclusion that he qualified as an armed career criminal. Williams conceded that a 1992 North Carolina conviction for felony trafficking in cocaine qualified as a predicate offense under § 924(e). He disputed, though, the PSR's conclusion regarding two 1993 New Jersey convictions, one for possession with intent to distribute cocaine and heroin (in violation of N.J.S. § 2C:35-5) and another for possession with intent to distribute heroin within 1000 feet of school property (in violation of N.J.S. § 2C:35-7).

The district court sentenced Williams, as an armed career criminal, to 180 months imprisonment.²

II

We review de novo the question whether a prior conviction qualifies as a predicate conviction under § 924(e). United States v. Brandon, 247 F.3d 186, 188 (4th Cir.2001).

A

A person convicted of violating § 922(g) may be subject to an enhanced sentence under § 924(e) as an armed career criminal. Section § 924(e) states that if a person violates § 922(g) "and has three previous convictions ... for a violent felony or a serious drug offense, or both ... such person shall be ... imprisoned not less than fifteen years." A "serious drug offense" is defined as

(i) an offense under the Controlled Substances Act ... for which a maximum term of imprisonment of ten years or more is prescribed by law; or

(ii) an offense under State law, involving manufacturing, distributing or possessing with intent to manufacture or distribute, a controlled substance ... for which a maximum term of imprisonment of ten years or more is prescribed by law.

§ 924(e)(2)(A).

Williams disputes the district court's finding that his two New Jersey convictions are "serious drug offenses" as defined by § 924(e)(2)(A). Williams argues that he was not subject to a maximum term of 10 years or more for those offenses, and that they therefore could not serve as predicate offenses under § 924(e).

B

The Government argues that Williams's 1992 North Carolina conviction for felony trafficking in cocaine subjected him to an enhanced New Jersey sentence of up to ten years imprisonment for each of his New Jersey drug offenses. We disagree. Under New Jersey's enhancement scheme, the established fact of a prior conviction does not automatically subject a defendant to an enhanced penalty. The sentencing court may reject the prosecutor's application for enhancement if the court finds that the prosecutor has abused his discretion in submitting the application. See State v. Lagares, 127 N.J. 20, 601 A.2d 698, 705 (1992). The prosecutor did not submit an enhancement application in Williams's New Jersey case, and no evidence in the record shows whether such an application would have been accepted if it had been submitted. The district court erred by finding Williams was in fact subject to ten years imprisonment for each of his New Jersey offenses and that those convictions were therefore "serious drug offenses."

We generally employ a "categorical approach" to determine whether a prior conviction serves as a predicate conviction under § 924(e), pursuant to Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Brandon, 247 F.3d at 188. Under this approach, we will "look[] only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." Id. In cases where the state conviction can be violated in a number of ways, some of which would support enhancement under § 924(e) and some of which would not, the categorical approach permits "the sentencing court [to] go beyond the fact of conviction and the statutory definition of the underlying crime [to] examine the indictment, other charging papers, or jury instructions to determine whether the defendant was charged with a crime that meets the requirements of § 924(e)." Id. (citing Taylor, 495 U.S. at 602, 110 S.Ct. 2143).

The New Jersey statutes under which Williams was convicted, §§ 2C:35-5 and 2C:35-7, may be violated both in ways that qualify as serious drug offenses and in ways that do not. If a person distributes more than five ounces of cocaine in New Jersey, he has committed a first degree crime in violation of §§ 2C:35-5a(1) and 2C:35-5b(1) and is ordinarily subject to a maximum of twenty years imprisonment under § 2C:43-6a(1).³ Conviction of a first degree crime under New Jersey law will qualify as a "serious drug offense" under § 924(e). If the person distributes less than one-half ounce of cocaine in New Jersey, he has committed a third degree crime in violation of §§ 2C:35-5a(1) and 2C:35-5b(3) and is ordinarily subject to a maximum of five years imprisonment under § 2C:43-6a(3). Conviction of a third degree crime under New Jersey law will not qualify as a "serious drug offense" under § 924(e) because the maximum term of imprisonment prescribed by law is less than ten years. Because the statutes under which Williams was convicted can be violated in a number of ways, some of which would support an enhancement and some of which would not, determination of whether Williams's New Jersey convictions qualify as predicate convictions under § 924(e) may, under Taylor, involve examination of "the indictment, other charging papers, or jury instructions." Brandon, 247 F.3d at 188 (citing Taylor, 495 U.S. at 602, 110 S.Ct. 2143).

Williams's first New Jersey conviction was for possession with intent to distribute less than one-half ounce of cocaine and heroin, in violation of §§ 2C:35-5a(1) and 2C:35-5b(3). Williams's second New Jersey conviction was for possession with intent to distribute an unspecified amount of heroin within 1000 feet of school property, in violation of § 2C:35-7. Both offenses are third degree crimes ordinarily punishable by maximum imprisonment of five years. § 2C:43-6a(3).

Section 2C:43-6f, however, states that persons convicted of violating § 2C:35-5 or § 2C:35-7 who were "previously convicted of manufacturing, distributing, dispensing, or possessing with intent to distribute" a controlled substance "shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by [§ 2C:43-7]." Under § 2C:43-7a(4), the maximum sentence for a third degree crime is ten years. Williams was convicted of felony trafficking in cocaine in North Carolina in April 1992. Williams was sentenced for the New Jersey offenses in January 1993. Williams's North Carolina conviction could serve as a predicate offense to his New Jersey offenses.

The fact that Williams could have had his second sentence extended under New Jersey law, however, does not mean Williams's conviction was for an offense "for which a maximum term of imprisonment of ten years or more is prescribed by law." The New Jersey sentencing statute includes procedural safeguards that must be considered before an enhanced term can be imposed. See § 2C:43-6(f). Absent exercise of these procedural safeguards, Williams could not have been subject to the enhanced sentence and the maximum term of imprisonment prescribed by law for his crimes is five years.

There are at least three procedural safeguards that must be considered before Williams could be subject to an enhanced sentence. One, the prosecutor must first make an application for an extended term. Id. Two, the New Jersey trial court cannot impose an extended term pursuant to § 2C:43-6f unless the prior conviction has been established by the prosecution by a preponderance of the evidence at a hearing. Id. Three, the New Jersey trial court is permitted to reject a prosecutor's application for enhancement if the court finds that an abuse of prosecutorial discretion existed...