Criminal Practice – Drug Offense Worked for ‘Career Offender’ Status

U.S. v. Dozier (Lawyers Weekly No. 001-022-17, 15 pp.) (Davis, S.J.) No. 15-4532, Jan. 30, 2017; USDC at Beckley, W.Va. (Berger, J.) 4th Cir.

Holding: Although the district court erred in applying a modified categorical approach to West Virginia’s general attempt statute to determine defendant was a “career offender,” defendant nevertheless qualified as a career offender, as his prior attempt conviction under West Virginia law properly constitutes a controlled substance offense under USSG § 4B1.2; the 4th Circuit affirms defendant’s sentence.

Given the unique complexity of general attempt statutes, we hold that sentencing courts must compare the state and generic elements of general attempt 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.

Drug Distribution

In April 2015, defendant pleaded guilty to distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1). He was designated a career offender due to two prior state convictions, which were categorized as “controlled substance offenses” under USSG § 4B1.2. Only the second conviction, for attempt to distribute a controlled substance, is at issue in this appeal. Defendant argued that the West Virginia attempt statute broadly covered any possible offense and, as a result, his prior attempt conviction did not categorically constitute a controlled substance offense. The district court applied the modified categorical approach, examined extra-statutory documents, concluded that defendant was a career offender and sentenced him to 151 months in prison.

A threshold issue is whether West Virginia’s general attempt statute is divisible and thus is subject to the modified categorical approach. In arguing that the statute is divisible, the government primarily relies on the statute’s three “classification” categories, which require the state sentencing court to first identify the punishment scheme of the underlying offense. We disagree that these categories compel the modified categorical approach.

Even if we assume the West Virginia attempt statute can be divided into three “classification” categories (based on the taxonomy of punishments it prescribes), no single category constitutes, by its elements, a controlled substance offense. No category references the manufacture, import, export, distribution, dispensing or possession (with requisite intent) of a controlled substance, nor does any category reference the attempt of these specific offenses. Based on our clear precedent, the general divisibility of the statute’s punishment scheme is insufficient to compel or justify application of the modified categorical approach.

We note a unique complexity of general attempt statutes: they do not set forth a standalone crime. To conclude that defendant’s conviction for attempt to distribute narcotics was properly deemed a controlled substance offense under § 4B1.1, we must determine not only that West Virginia’s definition of attempt is a categorical match for the generic definition of attempt, but also that the underlying statutory offense is a categorical match for any of the generic offenses listed as a controlled substance offense.

Under the categorical approach, defendant’s prior state conviction for attempt qualifies as a generic attempt offense. We also conclude that his prior attempt conviction qualifies as a controlled substance offense and he was properly deemed a career offender.

For alternative reasons, the district court judgment is affirmed.