Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Murray

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

January 10, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CLARENCE MURRAY, Defendant.

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON, UNITED STATES DISTRICT JUDGE

         Before the Court are Defendant's objections to the Presentence Investigation Report (“PSR”). (ECF No. 35; see also ECF No. 36.) The Court heard arguments from the parties during a hearing held on August 7, 2017, related to the three remaining objections following the PSR's revision on July 24, 2017. (ECF No. 40.) For the reasons provided herein, the Court OVERRULES Defendant's objections.

         I. DEFENDANT'S OBJECTIONS

         Three objections by Defendant remain outstanding. First, Defendant objects to the characterization of a substance purchased in a controlled buy as “MDEA” or “Ethylone” and to using the conversion rate for that substance to determine its marijuana equivalency for relevant conduct purposes. This first objection also involves the amount of heroin attributed to Defendant under relevant conduct principles. Second, Defendant objects to the application of the career offender enhancement on the basis that his prior convictions in New Jersey cannot be considered “controlled substance offenses” under the Guidelines because the New Jersey statute is categorically broader and allows for convictions of offenses involving controlled substance analogues. Finally, Defendant objects to the application of the § 851 enhancement in his case and argues that the prior convictions in New Jersey similarly do not qualify as “felony drug offenses” within the federal statutory definition. The Court will address each objection in turn.

         A. Relevant Conduct

         This objection first relates to the description of the substance that Defendant distributed during a controlled buy on May 1, 2015. Defendant disputes the name that the PSR attributes to that substance but concedes that recalculating the marijuana equivalency at the proposed conversion rate would not alter Defendant's offense level. (See ECF No. 35 at 2-3 (“[W]hile I realize that the conversion rate for the 3, 4-Methylenedioxyethylcathinone will not affect the offense level, I object to the conversion using the rate for 3, 4-methylenedioxy-N-ethylcathinone, absent some scientific evidence that 3, 4-methylenedioxy-N-ethylcathinone[ ]is the most closely related controlled substance.”).) Further, Defendant objects to the amount of heroin attributed to him based on Defendant's statement on June 11, 2015. Defendant avers that he should only be attributed 136.01 grams of heroin yielding a marijuana equivalency of 136.01 kilograms. (Id. at 3.) The revised PSR attributes to him 138.06 grams of heroin, or the equivalent of 138.06 kilograms of marijuana. Defendant's proposal would lower the PSR's overall drug quantity attributed to Defendant under relevant conduct principles from approximately 249 kilograms of marijuana equivalency to approximately 246 kilograms of marijuana equivalency.[1]

         Accordingly, Defendant's objection related to the classification of the substance distributed by him on May 1, 2015, and the quantity of heroin attributed to him does not alter his base offense level pursuant to Guidelines Section 2D1.1(c)(8). Further, because the Court overrules Defendant's objection as to his career offender designation, Defendant's base offense level is nonetheless enhanced under Chapter Four of the Guidelines. This enhancement renders moot Defendant's argument regarding the drug quantity calculated as relevant conduct. As such, the Court overrules this first objection.

         B. Career Offender Enhancement

         The PSR in this case sets out Defendant's criminal history, including three prior convictions that the probation officer categorizes as “controlled substance offenses” under Guidelines Section 4B1.2(b) and Application Note 1 of the Commentary to that section, which results in Defendant's designation as a career offender pursuant to Section 4B1.1. Those prior convictions, according to the PSR, include the following: (1) a March 16, 1999, conviction by jury trial for possession of cocaine and marijuana with intent to distribute within 1, 000 feet of school property in violation of New Jersey State Code § 2C:35-7 and § 2C:35-5a as well as employing a juvenile in a controlled substance distribution scheme in violation of New Jersey State Code §§ 2C:35-4, 2C:35-5, and/or 2C:35-6; (2) a June 21, 2007, conviction by guilty plea for possession with intent to distribute heroin within 1, 000 feet of school property in violation of New Jersey State Code § 2C:35-7; and (3) a March 25, 2010, conviction by guilty plea for manufacturing or distributing less than one-half ounce of heroin in violation of New Jersey State Code § 2C:35-5a(1) and § 2C:35-5b(3).[2] These convictions are set out in Paragraphs 93, 95, and 96 of the PSR.

         After conceding that all three prior convictions are felony convictions involving controlled substances, Defendant argues that for purposes of the career offender enhancement of the Guidelines they are not “controlled substance offenses.” (See ECF No. 36 at 2-6.) Defendant's argument is premised on the fact that the underlying state statute on which his convictions were based-New Jersey State Code § 2C:35-5-criminalizes the manufacture, distribution, or possession of controlled substance analogues. (See Id. at 3-4.) He avers that the inclusion of controlled substance analogues in addition to actual controlled substances makes the New Jersey statute categorically broader than controlled substance offenses as defined in Guidelines Section 4B1.2(b). (Id.) See also U.S. Sentencing Guidelines Manual § 4B1.2(b) (U.S. Sentencing Comm'n 2016) [hereinafter U.S.S.G.] (defining “controlled substance offense” to include an offense involving a controlled substance and a counterfeit substance but not an analogue).

         The Government's response to this objection focuses on Defendant's actual offenses of prior convictions and not the categorical nature of the statute on which those convictions are based. It argues that “Defendant was convicted of possessing with the intent to distribute or distributing controlled substances, to-wit: cocaine and heroin. He was not convicted of possessing or distributing any controlled substance analog[ue]s.” (ECF No. 39 at 3.) Presumably, the United States assumes in advancing this argument that the Court should apply the modified categorical approach in analyzing whether Defendant's prior convictions qualify as controlled substance offenses under Guidelines Section 4B1.2(b), which would allow for consideration of the charging instrument and other documents from the prior convictions. The Government also argues that the Guidelines definition prohibits the same conduct encompassed in the New Jersey statute, meaning that the New Jersey statute fits within the Guidelines definition of “controlled substance offense.” (See Id. at 3-4.) Proving that Defendant qualifies as a career offender is the Government's burden. See United States v. Lewis, 862 F.Supp. 1277, 1280 (D.N.J. 1994); see also United States v. Dees, No. 11-0110, 2013 WL 3756437, at *1 (W.D. Pa. July 15, 2013).

         A defendant is a career offender under the Guidelines if:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. ยง 4B1.1(a). It is undisputed that Defendant was over eighteen at the time of the instant offense, that the instant offense is a felony controlled substance offense, and that Defendant has zero prior felony convictions that are crimes of violence. At issue is whether Defendant's three prior convictions in New Jersey are ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.