United States v. Hinkle

• Citation: 832 F.3d 569
• Decision Date: 11 August 2016
• Docket Number: No. 15-10067,15-10067
• Parties: United States of America, Plaintiff–Appellee, v. Wayland Demond Hinkle, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

832 F.3d 569

United States of America, Plaintiff–Appellee,

v.Wayland Demond Hinkle, Defendant–Appellant.

No. 15-10067

United States Court of Appeals, Fifth Circuit.

Filed August 11, 2016

Brian W. McKay, Esq., James Wesley Hendrix, Assistant U.S. Attorneys, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff–Appellee.

Kevin Joel Page, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, Christopher Allen Curtis, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Fort Worth, TX, for Defendant–Appellant.

Before PRADO, OWEN, and HAYNES, Circuit Judges.

PRISCILLA R. OWEN

, Circuit Judge:

Wayland Demond Hinkle appeals his sentence, contending that the district court erred in determining that he was a career offender within the meaning of § 4B1.1(a) of United States Sentencing Guidelines

.¹ Hinkle argues that neither of his prior Texas convictions, one for burglary and the other for delivery of a controlled substance, constitutes a predicate offense under the career-offender guidelines provision.

Our decision turns upon whether the particular Texas statutes at issue are divisible such that a court may use the modified categorical approach to determine whether a defendant convicted under Texas law of knowingly delivering a controlled substance was convicted of delivery by one of the particular means proscribed under Texas law. In light of the Supreme Court's recent decision in Mathis v. United States

,² we conclude that Hinkle's conviction for delivery of a controlled substance is not a “controlled substance offense” within the meaning of the Guidelines, and therefore, the career-offender enhancement did not apply based on the record presently before us. We vacate Hinkle's sentence and remand for resentencing.

I

During a sting operation, Hinkle sold 0.3 grams of crack cocaine to a confidential informant working for the Fort Worth Police Department. Hinkle pleaded guilty to possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(C).

Hinkle was over 18 years of age when he committed this offense, and it was a “controlled substance offense” within the meaning of § 4B1.1(a) of the federal sentencing guidelines

. His sentence was therefore subject to being enhanced under the “Career Offender” Guidelines provision, § 4B1.1, if he had “at least two prior felony convictions of either a crime of violence or a controlled substance offense.”³ The Presentence Report (PSR) construed § 4B1.2, which defines “controlled substance offense”⁴ and “crime of violence,”⁵ as including Hinkle's prior conviction for delivery of heroin and his prior conviction for burglary, an enumerated “crime of violence.”⁶ The PSR applied an enhancement under § 4B1.1(b) and calculated an advisory sentencing range of 151 to 188 months of imprisonment. Without the career offender enhancement, the advisory sentencing range would have been 33 to 41 months of imprisonment.

In a written objection, Hinkle challenged the PSR's career-offender determination, asserting that the Texas statute under which he was convicted for delivery of heroin⁷ does not qualify as a “controlled substance offense” under the Guidelines because it criminalizes conduct that is not included within the Guidelines' definition of a “controlled substance offense.” He noted in his objections, and this court has held, that a conviction can be obtained under this Texas statute by proving only an offer to sell, and an offer to sell does not constitute a “controlled substance offense” within the meaning of the Guidelines.⁸ Citing the Supreme Court's decision in Descamps

,⁹ Hinkle asserted that the court could not consider underlying documents in order to determine whether Hinkle was convicted of offering to sell a controlled substance or instead was convicted of a form of delivering a controlled substance that would come within the Guidelines' definition of a “controlled substance conviction.” The district court overruled Hinkle's objection and sentenced him to 188 months' imprisonment. Hinkle has appealed.

II

Before Hinkle was convicted in federal court of the present offense, he was convicted in a Texas state court of a drug-related offense. The Texas statute of conviction, Texas Health & Safety Code section 481.112(a)

, provides that a person commits an offense if he or she “knowingly manufactures, delivers, or possesses with intent to deliver a controlled substance.”¹⁰ A separate section, 481.002(8), defines “deliver” as

to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia.¹¹

Section 4B1.2 of the Guidelines defines 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 a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.¹²

In determining whether a prior conviction is included within an offense defined or enumerated in the Guidelines, we have generally looked only to the elements of the prior offense, not to the actual conduct of the defendant in committing the offense.¹³ We employ the so-called “categorical” approach.¹⁴ The Government concedes that if Hinkle were convicted of delivering a controlled substance “by offering to sell” that substance, the crime would not come within the definition of a “controlled substance offense” under § 4B1.2

. However, the Government contends that the Texas indictment pursuant to which Hinkle was convicted did not charge Hinkle with offering to sell heroin but instead charged that he “knowingly delivered” a controlled substance “by actually transferring said controlled substance.”

The question in this appeal is whether the Texas statutes under which Hinkle was convicted are “divisible.”¹⁵ A statute is “divisible” when it “sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile.”¹⁶ As the Supreme Court explained in Descamps

,

[i]f one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction.¹⁷

We must resolve whether the definition of “deliver” in section 481.002(8)

in conjunction with section 481.112(a) sets forth different offenses, such that delivering a controlled substance by “offering to sell” it is a separate and distinct offense from delivering a controlled substance by “transfer[ing], actually ..., to another a controlled substance.”¹⁸ Hinkle contends that the various definitions of “deliver” in section 481.002(8) of the Texas statute are not elements of separate offenses but are various means of committing the offense of “deliver[ing] ... a controlled substance.” The Government contends that the Texas indictment can be used to “narrow” the offense of which Hinkle was convicted to the offense of “deliver[ing] ... a controlled substance” by “transfer[ing] [it] actually ... to another.” Both rely on Descamps¹⁹ in support of their respective positions.

III

We first consider the Government's contention that Hinkle's objection in the district court differs from the argument that he has pursued in our court and therefore that the plain error standard of review applies. The Government acknowledges that in the district court, Hinkle argued “that Descamps

changed this Court's precedent and rendered delivery under section 481.112(a) indivisible.” The Government contends that on appeal

Hinkle does not now dispute that Shepherd documents can be used to specify whether he was convicted of manufacturing heroin, delivering heroin, or possessing heroin with intent to deliver it. But in his view that is all they can do. Once they establish that his conviction was predicated on delivering heroin, he argues that they cannot then be used to specify whether he “delivered” heroin by actually transferring it, constructively transferring it, or offering it for sale because those are “means” not “elements.”

We see little distinction between Hinkle's contention in the district court that Descamps

“rendered delivery under section 481.112(a) indivisible” and the Government's characterization of Hinkle's argument on appeal.

In any event, Hinkle's written objection in the district court made clear his contention that “it is no longer sufficient for the government to show that there are ‘multiple ways to violate’ a state statute” and that “[i]n order to invoke the ‘modified categorical approach’ after Descamps

, the government needs to establish that the state statute has multiple sets of alternative elements, set out in the disjunctive.” Hinkle contended in the district court and maintains in this court that the definition of “delivery” sets forth varying means of committing the crime of knowingly delivering a controlled substance rather than setting forth elements of separate “delivery” offenses. He argues that the offense of knowingly delivering a controlled substance is broader than the Guidelines' definition of a controlled substance offense because the Texas offense criminalizes an offer to sell while the federal definition does not include such an offense. Accordingly, we disagree with the Government that we should review only for plain error. The arguments that Hinkle pursues in his appeal were adequately set forth in the district court. “For properly preserved claims, this...