North Carolina Lawyers Weekly
Because of his prior South Carolina convictions, defendant was sentenced as a career offender. One of those convictions was under a South Carolina statute that encompasses both simple possession and more serious drug offenses; nevertheless, defendant’s sentencing sheet shows that he pled guilty to possession “w.i.t.d.” or possession with intent to distribute, which counts as a controlled substance offense under the United States Sentencing Guidelines.
We affirm defendant’s sentence as a career offender.
In his opening brief, defendant failed to argue that his South Carolina conviction for assault with intent to kill should not be counted toward career offender status because the conviction could have been based on reckless conduct. After Borden v. United States, 141 S. Ct. 1817 (2021), was decided, defendant relied on Borden to make that previously omitted argument. However, before defendant filed his opening brief, this court had already reached the conclusion that Borden would later adopt. Since this argument was available to defendant when he filed his opening brief, his choice not to pursue the argument waived it for appellate review.
Dissent
(Harris, J.) Defendant was charged with marijuana possession under the broad statute S.C. Code Ann. § 44-53-370(b)(2). To be sure, the sentencing sheet says the offense was “w.i.t.d.,” which doubtless stands, as the district court found, for “with intent to distribute.” But the sentencing sheet also says “Manuf.,” though nobody believes defendant pleaded guilty to a manufacturing charge; and the only controlled substance specifically mentioned is not marijuana but “flunitrazepam or analogue.”
The problem in this case is not that the sentencing sheet does not describe defendant’s conviction with sufficient specificity; it is that it does not describe his conviction at all.
The most obvious reading of the sentencing sheet tells us nothing about the particular nature of defendant’s conviction except that it was for a first violation of some part of § 44-53-370(b)(2). And because some but not all parts of that statute qualify as “controlled substance offenses” under the Guidelines, that is not enough to establish that defendant’s conviction is a valid Guidelines predicate.
I would vacate defendant’s sentence and remand for resentencing without career offender enhancement.
United States v. Boyd (Lawyers Weekly No. 001-116-22, 22 pp.) (Allison Jones Rushing, J.) (Pamela Harris, J., dissenting) No. 18-4883. Appealed from USDC at Columbia, S.C. (Terry Wooten, S.J.) Daniel Charles Leonardi for appellant; Leesa Washington, Lance Crick and Rhett DeHart for appellee. 4th Cir.
