United States v. Boyd
| Decision Date | 30 November 2022 |
| Docket Number | 18-4883 |
| Parties | UNITED STATES of America, Plaintiff – Appellee, v. Cory Stephon BOYD, Defendant – Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Daniel Charles Leonardi, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Leesa Washington, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee. ON BRIEF: A. Lance Crick, Acting United States Attorney, Greenville, South Carolina, M. Rhett DeHart, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Before HARRIS, QUATTLEBAUM, and RUSHING, Circuit Judges.
Affirmed by published opinion. Judge Rushing wrote the majority opinion, in which Judge Quattlebaum joined. Judge Harris wrote a dissenting opinion.
Defendant Cory Boyd pleaded guilty to a drug offense and a related firearms offense in violation of federal law. He was sentenced as a career offender under the Sentencing Guidelines based on two prior state convictions: a 2007 conviction for assault with intent to kill (AWIK) and a 2013 conviction for what the district court determined was possession of a controlled substance with intent to distribute (PWID). Now on appeal, Boyd challenges his career-offender status and resulting sentence. He first argues that the district court erred in relying on inconclusive state-court sentencing documents to find that Boyd's 2013 drug conviction was, in fact, a conviction for PWID. Second, Boyd questions whether his 2007 AWIK conviction remains a Guidelines crime of violence following the Supreme Court's ruling in Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021). If we agree with Boyd on either of these points, his career-offender status cannot stand, and Boyd asks that we remand for the district court to resentence him without it.
But we disagree with Boyd on both grounds. The district court did not err in relying on Boyd's state-court sentencing sheet to determine that his 2013 conviction qualified as a controlled substance offense. And because Boyd did not contest that his AWIK conviction qualified as a predicate offense in his initial briefing with this Court, that argument is waived. Accordingly, we affirm.
A federal grand jury returned a three-count indictment charging Boyd with possession of cocaine and cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count 1); possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 2); and felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) (Count 3). Boyd pleaded guilty to Counts 1 and 2 pursuant to a written plea agreement.
In advance of sentencing, the probation office prepared a presentence report in which it concluded that Boyd qualified as a career offender under the United States Sentencing Guidelines. See U.S.S.G. § 4B1.1. That conclusion was predicated on two of Boyd's prior South Carolina convictions: a 2007 AWIK conviction and a 2013 conviction for what the presentence report concluded was PWID marijuana, first offense.
Boyd objected to the career-offender classification. Regarding his AWIK offense, Boyd argued it did not constitute a "crime of violence" under the Guidelines, see U.S.S.G. § 4B1.2(a), because under South Carolina law AWIK can be accomplished without the use, attempted use, or threatened use of physical force. Boyd also urged that South Carolina AWIK lacked the mental state necessary to qualify as a predicate offense because it requires only recklessness and "the Fourth Circuit has held that a recklessness mens rea is insufficient to establish that an offense is a crime of violence." J.A. 180 n.4. As for his 2013 state drug conviction, Boyd contended that it did not qualify as a "controlled substance offense" under the Guidelines, see U.S.S.G. § 4B1.2(b), because the South Carolina statute of conviction, S.C. Code Ann. § 44-53-370(a), encompassed not only trafficking crimes but also conspiracy and the mere purchase of drugs—crimes not covered by the Guidelines' definition. Boyd also argued that the district court should not rely on the state-court sentencing sheet for his 2013 conviction because it was inconclusive about the crime of conviction.
After hearing argument on Boyd's objections, the district court overruled them both and determined that Boyd qualified as a career offender. As a result, Boyd's Guidelines sentencing range was 262 to 327 months. The district court sentenced him to 262 months in prison.
Boyd timely appealed. In his opening brief to this Court, Boyd argued only that the district court procedurally erred by relying on inconclusive state-court documents to find that his 2013 drug offense qualified as a controlled substance offense for purposes of the Guidelines career-offender provision. Boyd's opening brief specifically disclaimed any "objection regarding the AWIK conviction" on appeal. Opening Br. at 6 n.6. After briefing concluded, the Supreme Court decided in Borden v. United States , ––– U.S. ––––, 141 S. Ct. 1817, 210 L.Ed.2d 63 (2021), that crimes that can be committed with a mens rea of recklessness are not violent felonies for purpose of the Armed Career Criminal Act (ACCA). After Borden , Boyd submitted a letter of "supplemental authority" to this Court, arguing that his AWIK offense does not constitute a Guidelines crime of violence because South Carolina AWIK requires only recklessness. A panel of this Court ordered additional briefing on Borden and on whether Boyd had abandoned his crime-of-violence argument.
The parties completed their supplemental briefing on October 15, 2021. We have jurisdiction to consider Boyd's appeal of his sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
A defendant qualifies as a Guidelines career offender if, among other requirements, he has at least two prior felony convictions for "a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). The district court determined that Boyd has exactly two predicate convictions—the 2007 AWIK conviction and the 2013 drug conviction. In assessing Boyd's challenge to the district court's Guidelines application, "we review factual findings for clear error and legal conclusions de novo. " United States v. Adepoju , 756 F.3d 250, 256 (4th Cir. 2014).
Boyd first maintains that the district court erred by relying on inconclusive state-court documents to determine that his 2013 drug conviction was, in fact, a conviction for PWID, which counts as a Guidelines controlled substance offense. Addressing Boyd's contention requires some background about the judicial process used to make this determination.
The Guidelines define a "controlled substance offense" as "an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance" or "the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 4B1.2(b). When evaluating whether a defendant's prior state conviction meets this definition, "we use the categorical approach," under which we "focus on the elements, rather than the facts, of the prior offense." United States v. Furlow , 928 F.3d 311, 318 (4th Cir. 2019) (internal quotation marks omitted), vacated and remanded on other grounds , ––– U.S. ––––, 140 S. Ct. 2824, 207 L.Ed.2d 157 (2020) (Mem.). Accordingly, we ask only "whether the elements of the prior offense ... correspond in substance to the elements of a controlled substance offense under the Guidelines."
United States v. Williams , 997 F.3d 519, 523 (4th Cir. 2021) (internal quotation marks omitted). Some state statutes list elements "in the alternative, thereby defining multiple offenses." Furlow , 928 F.3d at 318. For these divisible statutes, we use a modified categorical approach by which we "examine a limited class of documents to determine which of a statute's alternative elements formed the basis of the defendant's prior conviction." Descamps v. United States , 570 U.S. 254, 262, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). This limited class of documents—often called Shepard documents—includes "charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms," Johnson v. United States , 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), as well as "comparable judicial record[s] of this information," Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).
Here, the parties agree that the South Carolina statute under which Boyd was convicted in 2013 is divisible. That statute makes it "unlawful for any person ... to manufacture, distribute, dispense, deliver, purchase, aid, abet, attempt, or conspire to manufacture, distribute, dispense, deliver, or purchase, or possess with the intent to manufacture, distribute, dispense, deliver, or purchase a controlled substance or a controlled substance analogue." S.C. Code Ann. § 44-53-370(a)(1). In a persuasive unpublished decision, we previously concluded that Section 44-53-370(a)(1) sets forth separate offenses with different elements, making it divisible. See United States v. Marshall , 747 Fed. App. 139, 150 (4th Cir. 2018) ; United States v. Kershaw , 779 Fed. App. 172, 173 (4th Cir. 2019) (per curiam) ( to Marshall ). The Fifth Circuit has so held in a published opinion. See United States v. Rodriguez-Negrete , 772 F.3d 221, 226–227 (5th Cir. 2014). And our Court has also concluded, in a published decision, that a different South Carolina drug statute "almost identical" to Section 44-53-370(a)(1) is divisible for the same reason. Furlow , 928 F.3d at 320 (analyzing S.C....
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