United States v. Walker, 16-4367

• Decision Date: 24 May 2017
• Docket Number: No. 16-4367,16-4367
• Citation: 858 F.3d 196
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dean Washington WALKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

858 F.3d 196

UNITED STATES of America, Plaintiff-Appellee,

v.Dean Washington WALKER, Defendant-Appellant.

No. 16-4367

United States Court of Appeals, Fourth Circuit.

Argued: March 24, 2017

Decided: May 24, 2017

ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. William E. Day, II, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee. ON BRIEF: Beth Drake, Acting United States Attorney, Jimmie Ewing, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Before TRAXLER and WYNN, Circuit Judges, and DAVIS, Senior Circuit Judge.

Affirmed by published opinion. Judge Traxler wrote the opinion, in which Judge Wynn and Senior Judge Davis joined.

TRAXLER, Circuit Judge:

Dean Washington Walker, a native of Jamaica, pleaded guilty to illegal re-entry after being convicted of an aggravated felony. See 8 U.S.C. § 1326(b)(2). At sentencing, the district court concluded that Walker's prior drug conviction in Ohio qualified as a "drug trafficking offense," and the district court therefore applied the 16-level enhancement called for by the then-current version of U.S.S.G. § 2L1.2(b)(1)(A)(i) (2015). With the 16-level enhancement, Walker's offense level was 21, which, when combined with his category III criminal history, yielded an advisory sentencing range of 46-57 months. The district court varied downward and sentenced Walker to 30 months' imprisonment.

Walker appeals, challenging only the application of the 16-level enhancement. Finding no error, we affirm.

I.

To determine whether a prior conviction qualifies as a predicate offense under § 2L1.2, we apply the categorical approach, comparing the elements of the underlying offense to the federal definition. See, e.g., United States v. Alfaro , 835 F.3d 470, 472 (4th Cir. 2016). If the elements of the underlying offense "correspond[ ] in substance" to the federal definition, Taylor v. United States , 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the underlying offense categorically qualifies for the enhancement.

In 2004, Walker pleaded guilty to a charge of drug trafficking under Ohio law. The statute under which he was convicted states:

No person shall knowingly ... [p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance or a controlled substance analog, when the offender knows or has reasonable cause to believe that the controlled substance or a controlled substance analog is intended for sale or resale by the offender or another person.

Ohio Rev. Code Ann. § 2925.03(A)(2).

At the time of Walker's sentencing, U.S.S.G. § 2L1.2 provided for a 16-level enhancement in illegal entry cases where the defendant was deported after "a conviction for a felony that is ... a drug trafficking offense for which the sentence imposed exceeded 13 months." U.S.S.G. § 2L1.2(b)(1)(A)(i) (2015).¹ The Commentary to § 2L1.2 defined "drug trafficking offense" as

an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, or dispensing of, or offer to sell 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 .

U.S.S.G. § 2L1.2, cmt. n.1(B)(iv) (2015) (emphasis added).

A.

Focusing on the "with intent to manufacture ..." language of the Guidelines, Walker argues that his Ohio conviction does not qualify as a drug trafficking offense because the statute requires only that the defendant act knowingly rather than with specific intent, as he contends is required by the Guidelines. According to Walker, his prior conviction qualifies only as a "felony," which warrants a 4-level enhancement under § 2L1.2(b)(1)(D). We disagree.

Walker's argument is based on a misreading of the Guidelines' definition of a "drug trafficking offense." As Walker reads the definition, the "with intent ..." language applies to every one of the listed prohibited acts, not just to the act of possession. Walker thus effectively rewrites the definition of "drug trafficking offense" to read:

an offense under federal, state, or local law that prohibits the manufacture, import, export, distribution, possession or dispensing of, or offer to sell 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.

Of course, we must apply the definition as written, not as Walker wishes it were written. Given the Guidelines' repetition of the object of the prohibited acts—"controlled substance (or a counterfeit substance)," it is clear that "drug trafficking offense" encompasses two kinds of offenses: (1) offenses involving the manufacturing, importation, or distribution of controlled (or counterfeit) substances, and (2) offenses involving possession of controlled (or counterfeit) substances where that possession is for the specific purpose of engaging in distribution-related activities. See United States v. Ponce-Rodriguez , 863 F.Supp.2d 536, 539 (E.D. Va. 2012) ("An offense of conviction constitutes a ‘drug trafficking offense’ under § 2L1.2 if, and only if, the offense actually required proof of either (i) ‘the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance)’ or (ii) ‘the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.’ " (quoting U.S.S.G. § 2L1.2, cmt. n.1(B)(iv))). This reading of the Guidelines' definition makes sense, as courts have long distinguished between mere possession of drugs and trafficking in drugs. See, e.g., Lopez v. Gonzales , 549 U.S. 47, 53-54, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006) (noting that "ordinarily ‘trafficking’ means some sort of commercial dealing," and rejecting argument that "would often turn simple possession into trafficking, just what the English language tells us not to expect"); United States v. Renteria-Martinez , 847 F.3d 297, 300 (5th Cir. 2017) (per curiam) ("Possession alone does not equate to drug trafficking.").

We therefore conclude that, under the previous version of § 2L1.2, the specific "intent to manufacture, import, export, distribute, or dispense" is an element that must be established only for drug possession offenses.² The absence of a specific-intent requirement in the Ohio statute thus does not prevent Walker's conviction from qualifying as a drug trafficking offense under U.S.S.G. § 2L1.2(b)(1)(A)(i) (2015).

B.

Because the absence of a specific-intent element in the Ohio statute does not preclude application of the 16-level sentence enhancement, the dispositive question is whether Ohio Rev. Code Ann. § 2925.03(A)(2) categorically qualifies as a statute prohibiting "the manufacture, import, export, distribution, or dispensing of, or offer to sell a controlled substance (or a counterfeit substance)." U.S.S.G. § 2L1.2, cmt. n.1(B)(iv) (2015). We believe that question must be answered in the affirmative.

The Ohio statute qualifies as a drug trafficking offense under the categorical approach only if all of the ways of violating the statute, including the least culpable, satisfy the Guidelines' definition of a drug trafficking offense.³ See, e.g., United States v. Flores-Granados , 783 F.3d 487, 492 (4th Cir. 2015) ; United States v. King , 673 F.3d 274, 278 (4th Cir. 2012). As noted above, the statute applies to defendants who knowingly "prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute" controlled substances, so long as the defendants do those acts "knowing, or having reason to know, that the substance is intended for sale." State v. Cabrales , 118 Ohio St.3d 54, 886 N.E.2d 181, 188 (2008).

In United States v. Karam , 496 F.3d 1157 (10th Cir. 2007), the Tenth Circuit considered whether a conviction under the same Ohio statute qualified as a "controlled substance offense" under the career-offender guideline. See U.S.S.G. § 4B.1.2(b).⁴ The court concluded that all of the acts prohibited by the Ohio statute qualify as "distribution":

While the relevant portion of the Ohio statute prohibits conduct which alone may consist of no more than mere possession, it does so only "when the offender knows or has reasonable cause to believe the controlled substance is intended for sale or resale by ... another." Ohio Rev. Code Ann. § 2925.03(A)(2). This language makes clear that the statute prohibits only acts of distribution and does not extend to the possession of drugs for personal use. If an individual has knowledge or reasonable cause to believe drugs are intended for sale by another, the preparation for shipment, shipment, or transport of those drugs cannot simply involve the possessory act of one person moving his own drugs, as Karam asserts. Rather, each of these acts is an integral part of the distribution process and is therefore an act of distribution in and of itself. Simply because the Ohio statute prohibits each of the various phases of the distribution process does not make any one of these intervening acts any less an act of distribution than the final step in the process.

Karam , 496 F.3d at 1167-68 ; accord United States v. Fuentes-Oyervides , 541 F.3d 286, 289 (5th Cir. 2008) (per curiam) ("[W]e agree with the Tenth Circuit's understanding that an individual who prepares for shipment, ships, transports, delivers, prepares for distribution, or distributes a controlled substance while he knows or should know that the substance is intended for sale, commits an act of distribution under the Guidelines.").

We agree. Because the Ohio statute requires that the prohibited acts be done with knowledge of the intended sale, each of the prohibited acts are acts of distribution, not mere possession. If...