USA. v. Brandon
| Decision Date | 26 January 2001 |
| Docket Number | No. 00-4323,00-4323 |
| Citation | 247 F.3d 186 |
| Parties | (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL LEON BRANDON, Defendant-Appellant. Argued: |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeal from the United States District Court for the Middle District of North Carolina, at Durham. Frank W. Bullock, Jr., District Judge.
COUNSEL: ARGUED: Eric David Placke, Assistant Federal Public Defender, Greensboro, North Carolina, for Appellant. Lisa Blue Boggs, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF: Louis C. Allen, III, Federal Public Defender, Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney, Greensboro, North Carolina, for Appellee.
Before WILLIAMS and TRAXLER, Circuit Judges, and Gerald Bruce LEE, United States District Judge for the Eastern District of Virginia, sitting by designation.
Vacated and remanded by published opinion. Judge Traxler wrote the opinion, in which Judge Williams and Judge Lee joined.
Durham police officers investigating complaints of drug activity saw Michael Leon Brandon and another individual smoking crack cocaine. Brandon, carrying a black bag and a crack pipe, walked away from the scene despite the officers' requests to the contrary. Brandon then ran, shedding many of his clothes and the black bag along the way. After several blocks, the officers apprehended Brandon and then located the black bag, which contained a stolen .45 caliber semiautomatic pistol. Brandon, a convicted felon, pleaded guilty to unlawful possession of a firearm. See 18 U.S.C.A.S 922(g)(1) (West 2000). The district court determined that Brandon was an armed career criminal under 18 U.S.C.A. S 924(e)(1) (West 2000) and sentenced him to 180 months, the minimum sentence under that section. Brandon appeals, challenging the enhanced sentence. We vacate Brandon's sentence and remand for resentencing.
Federal law prohibits the possession of a firearm by certain people, including those "who ha[ve] been convicted in any court of[ ] a crime punishable by imprisonment for a term exceeding one year." 18 U.S.C.A. S 922(g)(1) (West 2000). While the sentence for a section 922(g) violation ordinarily is not more than ten years, see 18 U.S.C.A. S 924(a)(2) (West 2000), section 924(e) imposes a mandatory minimum sentence of fifteen years for a violation of section 922(g) if the defendant has three previous convictions "for a violent felony or a serious drug offense," 18 U.S.C.A. S 924(e)(1). As is relevant to this case, the statute defines a "serious drug offense" as "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." 18 U.S.C.A. S 924(e)(2)(A)(ii).
Brandon has three prior drug-related convictions. He concedes that two of the convictions satisfy section 924's definition of a serious drug offense, but he contends that the third conviction does not. The challenged conviction (the "1994 conviction") is Brandon's 1994 guilty plea in North Carolina to a charge of possessing between twenty-eight and two hundred grams of cocaine in violation of N.C. Gen. Stat. S 90-95(h)(3). Under this statute,"[a]ny person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine . . . shall be guilty of a felony . . . known as `trafficking in cocaine.'" The statute establishes three levels of progressively severe sentences for cases involving at least twenty-eight but less than two hundred grams; at least two hundred but less than four hundred grams; and more than four hundred grams. Brandon argues that because he was charged with and pleaded guilty only to possession of cocaine, the 1994 conviction is not a serious drug offense as defined in section 924(e). If Brandon's position is correct, then he would not be subject to the mandatory fifteen year minimum sentence required by section 924(e). Whether the 1994 conviction qualifies as a predicate conviction under section 924(e) is a question of statutory interpretation reviewed de novo. See United States v. Letterlough, 63 F.3d 332, 334 (4th Cir. 1995).
When determining whether a prior conviction can support enhanced sentencing under section 924(e), courts use a "categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." Taylor v. United States, 495 U.S. 575, 600 (1990). In a "narrow range of cases," however, the sentencing court may go beyond the fact of conviction and the statutory definition of the underlying crime to determine whether the conviction may be used as a predicate conviction under section 924(e). Id. at 602.
This narrow exception applies in cases where the state statute can be violated in several ways, some of which would support enhancement under 924(e) and some of which would not. In those cases, the sentencing court may examine the indictment, other charging papers, or jury instructions to determine whether the defendant was charged with a crime that meets the requirements of section 924(e). See id.; see also United States v. Coleman, 158 F.3d 199, 202 (4th Cir. 1998) (en banc); United States v. Cook, 26 F.3d 507, 509 (4th Cir. 1994).1
In this case, Brandon's 1994 conviction springs from a violation of a statute that prohibits the sale, manufacture, delivery, transportation, or possession of twenty-eight grams or more of cocaine. Because the statute can be violated by conduct that clearly falls within section 924(e)(A)(2)(ii)'s definition of serious drug felony (sale or manufacture), as well as by conduct that perhaps does not fall within the definition (possession), then resort to the indictment is proper. See United States v. Whitfield, 907 F.2d 798, 800 (8th Cir. 1990) ().
The indictment underlying the 1994 conviction alleges only that Brandon possessed more than twenty-eight grams but less than two hundred grams of cocaine. As previously noted, section 924(e)(2)(A)(ii) defines a serious drug offense as an offense under state law that involves "manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance." Thus, it would appear that Brandon's 1994 conviction, which seems to involve only possession, not possession with intent to distribute, does not satisfy the requirements for sentence enhancement under section 924(e).
The government, however, contends that while section 924(e)(2)(A)(ii) requires a predicate conviction to"involve[ ] possess[ion] with intent to manufacture or distribute," that does not mean the required intent must be an element of the underlying crime. According to the government, because "serious drug offense" is not defined by reference to the elements of the crime, Congress did not require intent to manufacture or distribute to be an element of the underlying crime. The government argues that all North Carolina convictions for trafficking by possession "involve" intent to distribute given the quantity (at least twenty-eight grams of cocaine) required to trigger application of the statute.
As the government points out, Congress defined "violent felony" in section 924(e) as a crime that "has as an element the use, attempted use, or threatened use of physical force against the person of another," 18 U.S.C.A. S 924(e)(2)(B)(i) (emphasis added), and also as a crime that "otherwise involves conduct that presents a serious potential risk physical injury to another," 18 U.S.C.A. S 924(e)(2)(B)(ii) (emphasis added). When applying this subsection, courts routinely give different meaning to the phrases "has as an element" and"otherwise involves," treating as violent felonies convictions under statutes proscribing conduct that presents a substantial risk of injury, even though force or physical injury is not an element of the underlying crime. See, e.g., United States v. Stephens, 237 F.3d 1031, 1033 (9th Cir. 2001); United States v. Houston, 187 F.3d 593, 594-95 (6th Cir. 1999); United States v. Hairston, 71 F.3d 115, 117-18 (4th Cir. 1995). This interpretation reflects the fundamental principle of statutory construction that "courts are obligated" to give effect to Congress's decision to use "different language in proximate subsections of the same statute." United States v. Barial, 31 F.3d 216, 218 (4th Cir. 1994).
Section 924(e)'s definition of serious drug offense speaks not in terms of the elements of the underlying crimes, but in terms of crimes "involving manufacturing, distributing, or possessing with intent to manufacture or distribute" illegal drugs. 18 U.S.C.A. S 924(e)(2) (A)(ii) (emphasis added). We see nothing in the structure or wording of subsection (2)(A)(ii) that would permit us to interpret "involving" in a manner inconsistent with the interpretation of"otherwise involves" in subsection (2)(B)(ii). That is, we cannot read "otherwise involves" as having a meaning distinct from "has as an element," while at the same time reading "involving" as meaning "has as an element." See Commissioner v. Lundy, 516 U.S. 235, 250 (1996) ().
Moreover, the word "involving" itself suggests that the subsection should be read expansively, see, e.g., American Heritage College Dictionary 717 (3d ed. 1997) (defining "involve" as "[t]o have as a necessary feature or consequence" (emphasis added)), as evidenced by this court...
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