United States v. Dozier

• Decision Date: 30 January 2017
• Docket Number: No. 15-4532,15-4532
• Citation: 848 F.3d 180
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Deshawn DOZIER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

848 F.3d 180

UNITED STATES of America, Plaintiff-Appellee,

v.Deshawn DOZIER, Defendant-Appellant.

No. 15-4532

United States Court of Appeals, Fourth Circuit.

Argued: October 27, 2016

Decided: January 30, 2017

ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Miller A. Bushong, III, OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia, for Appellee. ON BRIEF: Christian M. Capece, Federal Public Defender, Rachel E. Zimarowski, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Carol A. Casto, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Before SHEDD and KEENAN, Circuit Judges, and DAVIS, Senior Circuit Judge.

DAVIS, Senior Circuit Judge:

Deshawn Dozier pled guilty to distribution of a quantity of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and he was sentenced as a career offender to 151 months imprisonment. On appeal, Dozier contends (1) the district court erroneously applied the modified categorical approach when determining whether a prior state court attempt conviction qualified as a "controlled substance offense" under U.S.S.G. § 4B1.2, and (2) because West Virginia's general attempt statute criminalized more conduct than a generic controlled substance offense, he should not be designated a career offender.

We conclude that the district court erred in applying the modified categorical approach to the West Virginia general attempt statute. Given the unique complexity of general attempt statutes, we hold that sentencing courts must compare the state and generic elements of such statutes as well as the elements of the underlying substantive statutory offense when determining whether a prior attempt conviction qualifies as a controlled substance offense. The district court failed to make these required comparisons. However, even when analyzed under the correct approach, Dozier's prior attempt conviction under West Virginia law properly constitutes a controlled substance offense under § 4B1.2 of the Sentencing Guidelines. We therefore affirm the judgment.

I.

In April 2015, Dozier was charged with knowingly and intentionally distributing a quantity of crack cocaine in violation of 21 U.S.C. § 841(a)(1). After Dozier entered his guilty plea, the probation officer prepared a Presentence Investigation Report ("PSR") to assist the district court at sentencing. The PSR identified the relevant conduct attributable to Dozier, which produced a base offense level of 20. The PSR then recommended a two-level enhancement for possession of a firearm, a Chapter Four enhancement for qualifying as a career offender, and a three-level reduction for acceptance of responsibility. As a result of these calculations, the advisory guidelines range for Dozier's sentence became 151 to 188 months imprisonment.

Dozier was designated a career offender due to two prior state convictions, which were categorized as "controlled substance offenses" under § 4B1.2 of the Sentencing Guidelines. Only the second conviction, a conviction for attempt to distribute a controlled substance, is at issue in this appeal. Dozier objected to the categorization of this second conviction and his resulting career offender status. He posited that the West Virginia attempt statute under which he was convicted broadly covered any possible offense and, as a result, his prior attempt conviction did not categorically constitute a controlled substance offense. Without this second qualifying conviction, Dozier contended, he could not be classified as a career offender. The government disagreed. The government argued the statute was divisible and that under the modified categorical approach, it was "not in dispute" that Dozier's attempt conviction qualified as a controlled substance offense. J.A. 12.

At sentencing, the district court overruled Dozier's objection. The court observed that when determining whether to categorize the attempt offense as a felony or a misdemeanor, the statute directs it to first identify the punishment scheme of the underlying offense. Because it was also "impossible to determine the defendant's punishment without looking to the underlying offense," the district court found it "necess[ary]" to apply the modified categorical approach. J.A. 31. The district court examined extra-statutory documents and, based on the facts underlying Dozier's 2008 conviction, "readily conclude[d] that the defendant qualifies as a career offender." J.A. 30. The district court then adopted the PSR's advisory guideline range and imposed a sentence of 151 months imprisonment, followed by a three-year term of supervised release.

Dozier timely appealed. We have jurisdiction over this appeal pursuant to 18 U.S.C. § 3742.

II.

Dozier's sole contention on appeal is that his prior attempt conviction does not constitute a "controlled substance offense" for purposes of the career offender sentencing enhancement. This assertion presents a legal issue we review de novo. United States v. Jenkins , 631 F.3d 680, 682 (4th Cir. 2011) (citing United States v. Allen , 446 F.3d 522, 527 (4th Cir. 2006) ).

A.

Pursuant to § 4B1.1 of the U.S. Sentencing Guidelines, a defendant is a career offender if, among other factors,¹ "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). The term "controlled substance offense" is defined as:

[A]n 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 a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

Id. § 4B1.2(b). A controlled substance offense also includes the offenses of "aiding and abetting, conspiring, and attempting to commit such offenses." Id. § 4B1.2 cmt. n.1 (emphasis added).²

When addressing whether a prior conviction triggers a Guideline sentencing enhancement, "we approach the issue categorically, looking ‘only to the fact of conviction and the statutory definition of the prior offense.’ " United States v. Cabrera – Umanzor , 728 F.3d 347, 350 (4th Cir. 2013) (quoting Taylor v. United States , 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). "The point of the categorical inquiry is not to determine whether the defendant's conduct could support a conviction for a [predicate offense], but to determine whether the defendant was in fact convicted of a crime that qualifies as a [predicate offense]." Id. (citation omitted). Accordingly, "[t]he categorical approach focuses on the elements of the prior offense rather than the conduct underlying the conviction." Id. For a prior conviction to qualify as a Guideline predicate offense, "the elements of the prior offense [must] ‘correspond[ ] in substance’ to the elements of the enumerated offense." Id. (second alteration in original) (quoting Taylor , 495 U.S. at 599, 110 S.Ct. 2143 ).

This approach is altered for "divisible" statutes, statutes that "list elements in the alternative[ ] and thereby define multiple crimes." Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). In such circumstances, the sentencing court may apply the modified categorical approach and consult "a limited class of documents"—otherwise known as Shepard documents—"to determine what crime, with what elements, a defendant was convicted of." Id. (citations omitted). The Supreme Court has cautioned that the modified categorical approach "serves a limited function" and that Shepard documents may be consulted only where the statute, by "listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction." Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). "Where the statute defines the offense broadly rather than alternatively, the statute is not divisible, and the modified categorical approach simply ‘has no role to play.’ " Cabrera – Umanzor , 728 F.3d at 350 (quoting Descamps , 133 S.Ct. at 2285 ).

B.

A threshold issue in this appeal is whether West Virginia's general attempt statute is divisible and, as such, is subject to the modified categorical approach. The statute provides: "Every person who attempts to commit an offense, but fails to commit or is prevented from committing it, shall, where it is not otherwise provided, be punished[.]" W. Va. Code § 61–11–8. The statute then enumerates three different "classification" categories depending on the scope and means of punishment for the underlying statutory offense. Id. § 61–11–8(1) -(3). If the attempted offense is punishable with life imprisonment, the defendant will be guilty of a felony and shall be imprisoned for three to fifteen years. Id. § 61–11–8(1). If the attempted offense is punishable by imprisonment for a term less than life, the defendant will be guilty of a felony and may be imprisoned for one to three years or jailed for six to twelve months. Id. § 61–11–8(2). If the attempted offense is punishable by confinement in jail, however, the defendant will be guilty of only a misdemeanor. Id. § 61–11–8(3).

Our inquiry does not end with this statutory language. To the extent the statutory definition of a prior offense has been interpreted by the state's highest court, this interpretation informs and constrains our analysis of the state law. United States v. Aparicio – Soria , 740 F.3d 152, 154 (4th Cir. 2014) (en banc) (citing Johnson v. United States , 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ). As the parties acknowledge, the highest court in West Virginia has repeatedly held that to constitute the crime of attempt under § 61–11–8, two elements must be met: (1) a specific intent...