Criminal Practice – Clerical error didn’t render sentence ambiguous

Where the sentencing document showed the defendant pleaded guilty to possession with intent to distribute crack cocaine in violation of South Carolina law, a clerical error on the same form did not refute the government’s showing that his crime of conviction is the offense plainly spelled out on the sentencing sheet.

Background

Bryan Javon Williams pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court ruled that Williams had two prior convictions for controlled substance offenses: (1) a February 2003 conviction for possession with intent to distribute crack cocaine in violation of section 44-53-375(B) of the South Carolina code and (2) an August 2003 conviction for distribution of marijuana and distribution of crack cocaine in violation of sections 44-53- 370 and 44-53-375(B) of the South Carolina code. The district court accordingly imposed an increased base offense level pursuant to the sentencing guidelines manual.

Analysis

Williams challenges the district court’s ruling that his February 2003 conviction under section 44-53-375(B) for possession with intent to distribute crack cocaine is a controlled substance offense under the guidelines. Williams’s sentencing sheet indicates that he pleaded guilty to possession with intent to distribute crack cocaine in violation of section 44-53-375(B). Just below the section that lists the offense and statute of conviction, the sentencing sheet contains a box with a check mark indicating that Williams pleaded guilty to a “lesser included offense” of the offense charged in the indictment.

Williams contends that possession with intent to distribute crack cocaine is not a lesser included offense of trafficking under South Carolina law and thus that the sentencing sheet is ambiguous as to the specific crime under section 44-53-375(B) to which he pleaded guilty. Because section 44-53-375(B) is a divisible statute that includes crimes that are not controlled substance offenses, Williams maintains that his conviction under section 44-53-375(B) cannot be a controlled substance offense.

The court disagrees. At sentencing, the government had the burden to prove Williams’s prior crime of conviction by a preponderance of the evidence. The government met its burden here. The sentencing sheet clearly states that Williams pleaded guilty to possession with intent to distribute crack cocaine in violation of section 44-53-375(B). A clerical error in the form of an erroneously checked box does not suffice to refute the government’s showing that Williams’s crime of conviction is the offense plainly spelled out on the sentencing sheet. Accordingly the court concludes that Williams pleaded guilty to possession with intent to distribute crack cocaine in violation of section 44-53-375(B).

To sustain a conviction for possession with intent to distribute crack cocaine in violation of section 44-53-375(B), the state must prove beyond a reasonable doubt “(1) that the substance involved was in fact crack cocaine; (2) that the defendant had possession of that crack cocaine … and (3) that the defendant possessed the crack cocaine with intent to distribute.” Those elements correspond with the definition of a controlled substance offense under the guidelines.

Notwithstanding this categorical match, Williams contends that possession with intent to distribute crack cocaine under section 44-53-375(B) falls outside the definition of a controlled substance offense under the guidelines. His argument rests on the following language in the statute: “Possession of one or more grams of … cocaine base is prima facie evidence of a violation of this subsection.” Williams claims that this language permits a South Carolina jury to find “intent to distribute” based on mere possession of crack cocaine, whereas the guidelines do not treat possession of a controlled substance alone as a controlled substance offense.

The court disagrees with Williams’s reading of the statute. As South Carolina’s appellate courts have explained, section 44-53-375(B) “creates a permissive inference that possession of more than 1 gram of crack cocaine constitutes possession with intent to distribute.” And critically, “[a] permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved.” Put differently, the “intent to distribute” element “is not swept away by the existence of a permissive inference.” The South Carolina pattern jury instructions support this reading of section 44-53-375(B).

Affirmed.

United States v. Williams (Lawyers Weekly No. 001-103-21, 11 pp.) (Henry Franklin Floyd, J.) Case No. 19-4796. May 13, 2021. From D.S.C. (Joseph F. Anderson Jr., J.) Daniel Charles Leonardi for Appellant. Katherine Hollingsworth Flynn for Appellee.