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United States v. Rushin

United States District Court, S.D. West Virginia, Huntington Division

August 8, 2017

UNITED STATES OF AMERICA
v.
ANTOINE GARFIELD RUSHIN also known as “Chico” also known as “Cheeks”

          MEMORANDUM OPINION AND ORDER [1]

          ROBERT C. CHAMBERS, CHIEF JUDGE.

         I. Background

         Defendant Antoine Rushin appeared before the Court for a sentencing hearing on February 21, 2016. At the hearing Rushin objected to the Probation Officer's determination that an Ohio conviction for drug trafficking constituted a qualifying predicate offense on which to base a career offender determination according to the Sentencing Guidelines. At the hearing the Court overruled Rushin's objection but reserved final judgment until it could prepare a written order presenting in more detail the Court's reasoning. For the following reasons Rushin's objection is OVERRULED and the application of the career offender enhancement is proper.

         II. Legal Standard

         In order to be found a career offender under the Sentencing Guidelines a defendant must be “at least eighteen . . . at the time the defendant committed the instant offense; the instant offense is a . . . controlled substance offense; and the defendant has at least two prior felony convictions of . . . a controlled substance offense.” U.S. Sentencing Guidelines Manual § 4B1.1 (U.S. Sentencing Comm'n 2016). A controlled substance offense is defined as “an offense . . . that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute or dispense.” Id. § 4B1.2. This is also known as the “generic offense.”

         In a recent decision by the Supreme Court, Mathis v. United States, 136 S.Ct. 2243 (2016), the Court clarified the process a sentencing court should use to differentiate between qualifying and non-qualifying predicate offenses for the purposes of designating a defendant a career offender. Generally a sentencing court applies what is known as the “categorical approach.” Id. at 2248. That approach requires the sentencing court to look only at the fact that the defendant was convicted of a prior offense and “whether the elements of the crime of conviction sufficiently match the elements of the generic [controlled substance offense], while ignoring the particular facts of the case.” Id. But, if a prior conviction under a statute that by its elements alone criminalizes more conduct than that criminalized by the generic offense, then the conviction does not qualify as a predicate offense under the Sentencing Guidelines. See id.; United States v. Dozier, ___ F.3d___, No. 15-4532, 2017 WL 395098, at *2 (4th Cir. Jan 30, 2017).

         Where a statute is of a more complicated (“divisible”) nature and lists elements in the alternative and thereby defines multiple crimes, the categorical approach is altered to allow a sentencing court to review certain documents that might help the court determine for which crime the defendant was convicted and thus determine if that crime is a qualifying predicate offense. Mathis, 136 S.Ct. at 2249 (citing Shepard v. United States, 544 U.S. 13, 26 (2005)). This approach is generally referred to as the “modified categorical approach.” Id. “Under that approach, a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements a defendant was convicted.” Id. (citing Taylor v. United States, 495 U.S. 575, 602 (1990)). A sentencing court may not employ the modified categorical approach where rather than enumerate alternative elements to a crime, the statute “specifies diverse means of satisfying a single element of a single crime.” Id.

         Yet, where a statute is found to be “divisible” the sentencing court has no more authority to look to the “underlying brute facts or means” of the prior conviction that it would have had the statute been indivisible. Id. at 2251 (citing Richardson v. United States, 526 U.S. 813, 817 (1999)). The modified categorical approach only permits a court to determine the crime for which a defendant was convicted and what the elements of that crime are. Id. The Guidelines “cares not a whit” about the facts of the conviction and whether they, taken by themselves, could be a qualifying offense. Id. (citing Taylor, 495 U.S. at 599-602). The part of the divisible statute under which the defendant was convicted must, by its elements, meet the generic offense. Id.

         III. Analysis

         On May 3, 2011, Rushin pled guilty to a violation of Ohio Revised Code § 2925.03(A). The statute states:

(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance . . .
(2) Prepare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance . . ., when the offender knows or has a reasonable cause to believe that the controlled substance . . . is intended for sale or resale by the offender or another person.

Ohio Rev. Code Ann. § 2925.03(A). Ohio defines “distribute” as “to deal in, ship, transport, or deliver but does not include administering or ...


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