Criminal Practice – Career-Offender Enhancement – Two Predicate Convictions

Although the district court mistakenly applied a career-offender enhancement, the error was harmless because the court would have imposed the same substantively reasonable sentence based on the §3553(a) factors.

We affirmed Defendant’s conviction and sentence in full.

Defendant sold cocaine base to a confidential informant on three occasions in May 2023, totaling 65.85 grams. Following his arrest in June 2023 for failing to register as a sex offender, officers recovered substantial additional quantities of drugs, including more than 470 grams of cocaine. Defendant was indicted on three counts of distributing cocaine base and one count of possession with intent to distribute cocaine. He pleaded guilty to all counts without a plea agreement.

A Presentence Investigation Report identified two prior Florida drug convictions—a 2009 trafficking conviction and a 2014 possession-with-intent conviction—as predicate “controlled substance offenses,” classifying Defendant as a career offender under U.S.S.G. §4B1.1. This designation increased Defendant’s criminal history category from V to VI and his offense level from 26 to 32, yielding an advisory Guidelines range of 151–188 months. Without the enhancement, the applicable range would have been 84–105 months.

At sentencing, Defendant argued that the career-offender enhancement was erroneous because the Florida trafficking statute criminalized purchase and simple possession, conduct broader than the Guidelines’ definition of a controlled substance offense. The government did not dispute this argument on appeal. The district court nonetheless applied the enhancement but imposed a downward variance, sentencing Defendant to 120 months’ imprisonment. The court explicitly stated that even if it were wrong about the enhancement, it would vary upward from the lower Guidelines range to impose the same 120-month sentence based on Defendant’s criminal history and risk of recidivism.

On appeal, we agreed that the district court committed procedural error by applying the career-offender enhancement. Using the categorical approach, we held that the Florida statute was not a categorical match for a controlled substance offense because it encompassed purchase and possession of quantities consistent with personal use. As a result, Defendant lacked the two predicate convictions required for career-offender status.

The court nonetheless affirmed the sentence under harmless-error review. It emphasized that remand is unnecessary where the district court makes clear that the same sentence would be imposed regardless of the Guidelines error and the sentence is substantively reasonable. Here, the sentencing judge unambiguously stated that a 120-month sentence was appropriate even absent the enhancement, citing Defendant’s repeated involvement in drug trafficking, prior convictions, and demonstrated recidivism.

Further, the sentence was substantively reasonable. The district court carefully weighed the §3553(a) factors, including Defendant’s extensive criminal history and mitigating circumstances such as the death of his child and marital difficulties. The variance imposed was modest relative to the defense’s own alternative sentencing recommendation and well within the range of variances previously upheld by the court.

Affirmed.

U.S. v. Cox (Lawyers Weekly No. 001-029-26, 10 pp.) (J. Harvie Wilkinson III, J.) Appealed from the U.S. District Court for the Eastern District of North Carolina, at Wilmington (Richard E. Myers, II, J.) ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Jake Pugh, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Daniel P. Bubar, Acting United States Attorney, David A. Bragdon, Assistant United States Attorney, Lucy Partain Brown, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. U.S. Court of Appeals for the Fourth Circuit