United States v. Brandon ( 2001 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4323
MICHAEL LEON BRANDON,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CR-99-318)
Argued: January 26, 2001
Decided: April 17, 2001
Before WILLIAMS and TRAXLER, Circuit Judges, and
Gerald Bruce LEE, United States District Judge for the
Eastern District of Virginia, sitting by designation.
Vacated and remanded by published opinion. Judge Traxler wrote the
opinion, in which Judge Williams and Judge Lee joined.
COUNSEL
ARGUED: Eric David Placke, Assistant Federal Public Defender,
Greensboro, North Carolina, for Appellant. Lisa Blue Boggs, Assis-
tant United States Attorney, Greensboro, North Carolina, for Appel-
lee. ON BRIEF: Louis C. Allen, III, Federal Public Defender,
Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr.,
United States Attorney, Greensboro, North Carolina, for Appellee.
2 UNITED STATES v. BRANDON
OPINION
TRAXLER, Circuit Judge:
Durham police officers investigating complaints of drug activity
saw Michael Leon Brandon and another individual smoking crack
cocaine. Brandon, carrying a black bag and a crack pipe, walked away
from the scene despite the officers’ requests to the contrary. Brandon
then ran, shedding many of his clothes and the black bag along the
way. After several blocks, the officers apprehended Brandon and then
located the black bag, which contained a stolen .45 caliber semi-
automatic pistol. Brandon, a convicted felon, pleaded guilty to unlaw-
ful possession of a firearm. See 18 U.S.C.A. § 922(g)(1) (West 2000).
The district court determined that Brandon was an armed career crim-
inal under 18 U.S.C.A. § 924(e)(1) (West 2000) and sentenced him to
180 months, the minimum sentence under that section. Brandon
appeals, challenging the enhanced sentence. We vacate Brandon’s
sentence and remand for resentencing.
I.
Federal law prohibits the possession of a firearm by certain people,
including those "who ha[ve] been convicted in any court of[ ] a crime
punishable by imprisonment for a term exceeding one year." 18
U.S.C.A. § 922(g)(1) (West 2000). While the sentence for a section
922(g) violation ordinarily is not more than ten years, see 18 U.S.C.A.
§ 924(a)(2) (West 2000), section 924(e) imposes a mandatory mini-
mum sentence of fifteen years for a violation of section 922(g) if the
defendant has three previous convictions "for a violent felony or a
serious drug offense," 18 U.S.C.A. § 924(e)(1). As is relevant to this
case, the statute defines a "serious drug offense" as "an offense under
State law, involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance . . . for
which a maximum term of imprisonment of ten years or more is pre-
scribed by law." 18 U.S.C.A. § 924(e)(2)(A)(ii).
Brandon has three prior drug-related convictions. He concedes that
two of the convictions satisfy section 924’s definition of a serious
drug offense, but he contends that the third conviction does not. The
challenged conviction (the "1994 conviction") is Brandon’s 1994
UNITED STATES v. BRANDON 3
guilty plea in North Carolina to a charge of possessing between
twenty-eight and two hundred grams of cocaine in violation of N.C.
Gen. Stat. § 90-95(h)(3). Under this statute, "[a]ny person who sells,
manufactures, delivers, transports, or possesses 28 grams or more of
cocaine . . . shall be guilty of a felony . . . known as ‘trafficking in
cocaine.’" The statute establishes three levels of progressively severe
sentences for cases involving at least twenty-eight but less than two
hundred grams; at least two hundred but less than four hundred
grams; and more than four hundred grams. Brandon argues that
because he was charged with and pleaded guilty only to possession
of cocaine, the 1994 conviction is not a serious drug offense as
defined in section 924(e). If Brandon’s position is correct, then he
would not be subject to the mandatory fifteen year minimum sentence
required by section 924(e). Whether the 1994 conviction qualifies as
a predicate conviction under section 924(e) is a question of statutory
interpretation reviewed de novo. See United States v. Letterlough, 63
F.3d 332, 334 (4th Cir. 1995).
II.
When determining whether a prior conviction can support
enhanced sentencing under section 924(e), courts use a "categorical
approach, looking only to the statutory definitions of the prior
offenses, and not to the particular facts underlying those convictions."
Taylor v. United States, 495 U.S. 575, 600 (1990). In a "narrow range
of cases," however, the sentencing court may go beyond the fact of
conviction and the statutory definition of the underlying crime to
determine whether the conviction may be used as a predicate convic-
tion under section 924(e). Id. at 602.
This narrow exception applies in cases where the state statute can
be violated in several ways, some of which would support enhance-
ment under 924(e) and some of which would not. In those cases, the
sentencing court may examine the indictment, other charging papers,
or jury instructions to determine whether the defendant was charged
with a crime that meets the requirements of section 924(e). See id.;
see also United States v. Coleman, 158 F.3d 199, 202 (4th Cir. 1998)
(en banc); United States v. Cook, 26 F.3d 507, 509 (4th Cir. 1994).1
1
Although Taylor involved the determination of whether a prior con-
viction should be considered a burglary conviction under section
4 UNITED STATES v. BRANDON
In this case, Brandon’s 1994 conviction springs from a violation of
a statute that prohibits the sale, manufacture, delivery, transportation,
or possession of twenty-eight grams or more of cocaine. Because the
statute can be violated by conduct that clearly falls within section
924(e)(A)(2)(ii)’s definition of serious drug felony (sale or manufac-
ture), as well as by conduct that perhaps does not fall within the defi-
nition (possession), then resort to the indictment is proper. See United
States v. Whitfield, 907 F.2d 798, 800 (8th Cir. 1990) (looking to con-
duct alleged in the charging information in a case where the prior con-
viction involved the violation of a state statute that prohibited the
manufacture, distribution, and possession of controlled substances).
The indictment underlying the 1994 conviction alleges only that
Brandon possessed more than twenty-eight grams but less than two
hundred grams of cocaine. As previously noted, section
924(e)(2)(A)(ii) defines a serious drug offense as an offense under
state law that involves "manufacturing, distributing, or possessing
with intent to manufacture or distribute, a controlled substance."
Thus, it would appear that Brandon’s 1994 conviction, which seems
to involve only possession, not possession with intent to distribute,
does not satisfy the requirements for sentence enhancement under
section 924(e).
The government, however, contends that while section
924(e)(2)(A)(ii) requires a predicate conviction to "involve[ ] possess-
924(e)(2)(B)(ii), we have applied its categorical approach and its
approval of limited review of the charging papers and jury instructions
to cases involving other crimes under subsections (2)(B)(i) and (2)(B)(ii).
See United States v. Frazier-El, 204 F.3d 553, 562 (4th Cir.), cert.
denied, 121 S. Ct. 487 (2000); United States v. Hairston, 71 F.3d 115,
117-18 (4th Cir. 1995); Cook, 26 F.3d at 510. This approach is equally
applicable to the determination of whether a prior conviction is for a "se-
rious drug felony" under section 924(e)(2)(A). See Taylor, 495 U.S. at
602 ("We think the only plausible interpretation of § 924(e)(2)(B)(ii) is
that, like the rest of the enhancement statute, it generally requires the trial
court to look only to the fact of conviction and the statutory definition
of the prior offense."); United States v. Bregnard, 951 F.2d 457, 459 (1st
Cir. 1991) ("Although Taylor involved the analysis of a crime specifi-
cally listed in § 924(e)(2)(B)(ii), the Supreme Court adopted a formal
categorical approach applicable to the entire enhancement statute.").
UNITED STATES v. BRANDON 5
[ion] with intent to manufacture or distribute," that does not mean the
required intent must be an element of the underlying crime. Accord-
ing to the government, because "serious drug offense" is not defined
by reference to the elements of the crime, Congress did not require
intent to manufacture or distribute to be an element of the underlying
crime. The government argues that all North Carolina convictions for
trafficking by possession "involve" intent to distribute given the quan-
tity (at least twenty-eight grams of cocaine) required to trigger appli-
cation of the statute.
As the government points out, Congress defined "violent felony"
in section 924(e) as a crime that "has as an element the use, attempted
use, or threatened use of physical force against the person of another,"
18 U.S.C.A. § 924(e)(2)(B)(i) (emphasis added), and also as a crime
that "otherwise involves conduct that presents a serious potential risk
physical injury to another," 18 U.S.C.A. § 924(e)(2)(B)(ii) (emphasis
added). When applying this subsection, courts routinely give different
meaning to the phrases "has as an element" and "otherwise involves,"
treating as violent felonies convictions under statutes proscribing con-
duct that presents a substantial risk of injury, even though force or
physical injury is not an element of the underlying crime. See, e.g.,
United States v. Stephens, 237 F.3d 1031, 1033 (9th Cir. 2001);
United States v. Houston, 187 F.3d 593, 594-95 (6th Cir. 1999);
United States v. Hairston, 71 F.3d 115, 117-18 (4th Cir. 1995). This
interpretation reflects the fundamental principle of statutory construc-
tion that "courts are obligated" to give effect to Congress’s decision
to use "different language in proximate subsections of the same stat-
ute." United States v. Barial, 31 F.3d 216, 218 (4th Cir. 1994).
Section 924(e)’s definition of serious drug offense speaks not in
terms of the elements of the underlying crimes, but in terms of crimes
"involving manufacturing, distributing, or possessing with intent to
manufacture or distribute" illegal drugs. 18 U.S.C.A. § 924(e)(2)
(A)(ii) (emphasis added). We see nothing in the structure or wording
of subsection (2)(A)(ii) that would permit us to interpret "involving"
in a manner inconsistent with the interpretation of "otherwise
involves" in subsection (2)(B)(ii). That is, we cannot read "otherwise
involves" as having a meaning distinct from "has as an element,"
while at the same time reading "involving" as meaning "has as an ele-
ment." See Commissioner v. Lundy, 516 U.S. 235, 250 (1996) (noting
6 UNITED STATES v. BRANDON
the "normal rule of statutory construction that identical words used in
different parts of the same act are intended to have the same meaning"
(internal quotation marks omitted)).
Moreover, the word "involving" itself suggests that the subsection
should be read expansively, see, e.g., American Heritage College Dic-
tionary 717 (3d ed. 1997) (defining "involve" as "[t]o have as a neces-
sary feature or consequence" (emphasis added)), as evidenced by this
court’s decision in United States v. James, 834 F.2d 92 (4th Cir.
1987). In James, the question was whether a conviction for possession
of cocaine with intent to distribute was a drug trafficking conviction
under 18 U.S.C.A. § 924(c). Although it has since been amended, sec-
tion 924(c) at that time defined "drug trafficking crime" as "‘any fel-
ony violation of federal law involving the distribution, manufacture,
or importation of any controlled substance.’" James, 834 F.2d at 92.
The James court rejected the argument that possession with intent to
distribute was not a drug trafficking crime under section 924(c):
[V]iolations "involving" the distribution, manufacture, or
importation of controlled substances must be read as includ-
ing more than merely the crimes of distribution, manufactur-
ing, and importation themselves. Possession with intent to
distribute is closely and necessarily involved with distribu-
tion. In fact, the line between the two may depend on mere
fortuities, such as whether police intervene before or after
narcotics have actually changed hands.
Id. at 93.
Accordingly, we agree with the government that a prior conviction
constitutes a serious drug felony if the underlying crime involves pos-
session with intent to manufacture or distribute, even if that intent is
not a formal element of the crime under state law.2 It does not follow
2
We recognize that there are decisions from other circuits that might
appear to reach a different conclusion. But those cases in fact do not
address the precise issue we confront here. For example, in United States
v. Whitfield, 907 F.2d 798, 800 (8th Cir. 1990), the court concluded that
a conviction for trafficking based on possession of heroin was not a con-
UNITED STATES v. BRANDON 7
from this conclusion, however, that Brandon’s 1994 conviction is a
serious drug offense for purposes of section 924(e).
In cases where enhancement under section 924(e) is hinged not on
the elements of the underlying crime but on whether the crime "in-
volves" particular conduct, courts follow the approach outlined in
Taylor and ask whether the proscribed conduct is an inherent part or
result of the generic crime of conviction, without regard to the facts
surrounding the underlying conviction, or, stated somewhat differ-
ently, whether the abstract crime intrinsically involves the proscribed
conduct. See Stephens, 237 F.3d at 1033 (holding that a conviction for
carrying a weapon in connection with a drug trafficking offense is a
viction for a serious drug offense under section 924(e)(2)(A)(ii). There
is no indication in Whitfield, however, whether the decision was prem-
ised on a conclusion that intent to distribute or manufacture must be an
element of the underlying crime of conviction or upon a determination
that the crime for which the defendant was convicted simply did not "in-
volve" the requisite intent. Similarly, the Fifth Circuit in United States
v. Martinez-Cortez, 988 F.2d 1408, 1410 (5th Cir. 1993), stated that
"without ‘intent to distribute,’ a conviction for possession of a controlled
substance does not qualify as a ‘serious drug offense’ for purposes of
enhancement [under section 924(e)]." The court reviewed the record and
concluded that one of the defendant’s "convictions was for ‘possession
of a controlled substance’ (no mention of intent to distribute)," and there-
fore could not be used to enhance the defendant’s sentence. Id. The opin-
ion does not indicate whether it was the absence of intent to distribute
as an element that was dispositive or whether the record simply did not
support an inference of the requisite intent. Other circuits considering the
meaning of "felony drug offense" as used in 21 U.S.C.A. § 841 have
noted that a conviction for "simple possession" is not a serious drug
offense under section 924(e)(2)(A)(ii). See United States v. Spikes, 158
F.3d 913, 932 (6th Cir. 1998); United States v. Sandle, 123 F.3d 809,
811-12 (5th Cir. 1997); United States v. Hansley, 54 F.3d 709, 717-18
(11th Cir. 1995). Again there is no indication in these cases whether the
terms "simple possession" or "mere possession" were used to refer only
to convictions for crimes that do not include intent to manufacture or dis-
tribute as an element, or whether they referred to convictions for crimes
that did not "involve" the requisite intent to distribute or manufacture,
perhaps because of the quantity of drugs encompassed by the relevant
statute.
8 UNITED STATES v. BRANDON
violent felony under section 924(e)(2)(B)(ii) because "the danger of
violence inheres in the combination of firearms and drugs" (internal
quotation marks and alteration omitted)); Hairston, 71 F.3d at 118
(concluding that felony escape from custody is a violent felony under
section 924(e)(2)(B)(ii) because the crime "inherently presents the
serious potential risk of physical injury to another"); United States v.
Kaplansky, 42 F.3d 320, 324 (6th Cir. 1994) (en banc) (finding kid-
naping conviction to be a violent felony under section 924(e)(2)(B)(ii)
even though force is not a necessary element of the crime under state
law because "kidnaping is the ‘type’ of offense where the risk of
physical injury is invariably present"); United States v. Anderson, 989
F.2d 310, 312 (9th Cir. 1993) (noting that section 924(e)(2)(B)((ii)
"covers crimes that inherently—as defined in the abstract, not neces-
sarily as committed in the particular case—‘involve[ ] use of explo-
sives, or otherwise involve[ ] conduct that presents a serious potential
risk of physical injury to another’" (alterations in original)); United
States v. Custis, 988 F.2d 1355, 1363 (4th Cir. 1993) ("In applying
such a categorical approach, we think that courts must necessarily
make common-sense judgments about whether a given offense pro-
scribes generic conduct with the potential for serious physical injury
to another."), aff’d, 511 U.S. 485 (1994). Applying the same approach
in this case, we must determine whether intent to manufacture or dis-
tribute is inherent in the generic conduct proscribed by the statute and
alleged in the indictment underlying Brandon’s 1994 conviction—
possession of more than twenty-eight grams but less than two hundred
grams of cocaine.
Distribution of drugs is a greater threat to society than is mere use
of the drugs, though both constitute great dangers, and it is natural
and reasonable to assume that those who possess very large quantities
of drugs intend to distribute those drugs. And this very reasonable
assumption is likely the reason that many states have enacted traffick-
ing statutes that severely punish possession of large quantities of
drugs without making intent to distribute those drugs an element of
the crime. What quantity of drugs must be possessed before this pre-
sumption of an intent to distribute is appropriate, however, is difficult
to answer definitively, as evidenced by the widely varying quantities
that states have established as the threshold for a trafficking-by-
possession conviction. For example, possession of five grams of
cocaine is considered trafficking in Delaware, see Del. Code Ann. tit.
UNITED STATES v. BRANDON 9
16, § 4753A(a)(2); possession of ten grams of cocaine is trafficking
in South Carolina, see S.C. Code Ann. § 44-53-370(e)(2); possession
of twenty-eight grams is trafficking in North Carolina, see N.C. Gen.
Stat. § 90-95(h)(3); but it takes possession of more than one hundred
and fifty grams to be guilty of trafficking in Missouri, see Mo. Ann.
Stat. § 195.223.2.
Most people might agree that intent to distribute is inherent in the
possession of two hundred grams of cocaine, but Brandon was alleged
to have been in possession of between twenty-eight grams (which is
just under an ounce) and two hundred grams of cocaine. Quantities
at the lower end of this range are not so large that the only reasonable
inference is that one who possesses that amount must intend to dis-
tribute it. While that may be a reasonable inference, another reason-
able inference is that an ounce of cocaine, or even more, is intended
for personal use only. Cf. United States v. Baker, 985 F.2d 1248, 1260
(4th Cir. 1993) (concluding that the defendant was entitled to an
instruction on simple possession as a lesser-included offense of pos-
session with intent to distribute, noting trial testimony establishing
that the defendant, a cocaine user, "bought one to three ounces of
cocaine a week, which is a large amount but which could be consis-
tent with personal consumption"); United States v. Latham, 874 F.2d
852, 863 (1st Cir. 1989) (finding evidence that two people jointly pos-
sessed one ounce of cocaine insufficient to establish possession with
intent to distribute and noting trial testimony that "a heavy user could
go through an ounce of cocaine in 1 1/2 — 2 days"). Certainly soci-
ety’s comfort level in equating possession to possession-with-intent
increases as the quantity of drugs possessed increases, and it
decreases as the quantity of drugs possessed decreases. Nevertheless
it is clear that some defendants possess very small quantities of drugs
for the sole purpose of distributing them and that some defendants
possess significant quantities of drugs solely for personal use. There-
fore, while the quantity of drugs possessed can serve as an indicator
of the purposes for which the drugs were possessed, at certain levels
it is a rough and imprecise indicator at best.
If Brandon had been convicted under a statute with a sufficiently
high minimum quantity—for example, a statute like Missouri’s that
considers possession of more than one hundred and fifty grams of
cocaine to be trafficking—then we would have no difficulty conclud-
10 UNITED STATES v. BRANDON
ing that the conviction "involved" an intent to manufacture or distrib-
ute. That is, under such a statute we could easily conclude from the
statutory definition (possession of more than one hundred and fifty
grams of cocaine) that intent to manufacture or distribute is inherent
in the crime of conviction. Given the range of drug quantities covered
by the North Carolina statute, however, we simply cannot say that the
typical conduct reached by that statute inherently involves an intent
to manufacture or distribute that cocaine, which would be necessary
for the 1994 conviction to serve as a predicate conviction under sec-
tion 924(e)(A)(2)(ii). Cf. United States v. Martin, 215 F.3d 470, 475
(4th Cir. 2000) (holding that bank larceny is not a crime of violence
for purposes of sentencing as a career offender under the sentencing
guidelines, because "[o]ur precedents suggest that most, if not all,
instances of an offense should involve a serious potential risk of
injury in order for that offense to constitute a crime of violence in the
abstract").3 Nor can we reach such a conclusion by looking more spe-
cifically to the actual quantity of drugs possessed by Brandon.
Preliminarily, we question whether such a factual inquiry is consis-
tent with the categorical approach used when determining whether a
prior conviction is a predicate conviction under section 924(e). See
Taylor, 495 U.S. at 600 (concluding that section "924(e) mandates a
formal categorical approach, looking only to the statutory definitions
of the prior offenses, and not to the particular facts underlying those
convictions").
The indictment for the 1994 conviction states only that Brandon
possessed between twenty-eight and two hundred grams; it does not
mention the specific quantity involved. The amount, however, is men-
tioned in the presentence report, and Brandon does not challenge that
amount as inaccurate. Whether it is proper under Taylor to look to
facts contained in a presentence report when the fact of conviction is
3
The same categorical approach is applied when determining whether
an underlying conviction is a "crime of violence" for purposes of career
offender status under section 4B1.1 of the Sentencing Guidelines Man-
ual. Courts often rely on guidelines cases when considering armed career
criminal status under section 924(e) and vice versa. See Martin, 215 F.3d
at 474 n.2.; United States v. Kirksey, 138 F.3d 120, 124 (4th Cir. 1998);
see also United States v. Shepard, 231 F.3d 56, 63 n.7 (1st Cir. 2000).
UNITED STATES v. BRANDON 11
insufficient to resolve the armed career criminal question is open to
some debate. Compare, e.g., United States v. Adams, 91 F.3d 114,
116 (11th Cir. 1996) (concluding that resort to the presentence report
is proper), with United States v. Potter, 895 F.2d 1231, 1238 (9th Cir.
1990) (concluding that resort to the presentence report is improper).
This circuit has not in a published opinion sanctioned the consider-
ation of a presentence report and thus far has only considered charg-
ing papers or certified court records. See Frazier-El, 204 F.3d at 562-
63 (considering statutory definition and state certified court records);
Coleman, 158 F.3d at 202-03 (considering charging papers, which
under Maryland law, included probable cause affidavit); Cook, 26
F.3d at 509 (considering indictment); United States v. Bowden, 975
F.2d 1080, 1082 n. 2 (4th Cir. 1992) (considering certified copies of
the state court judgments and declining to address whether consider-
ation of the presentence report would also be proper). Assuming with-
out deciding that resort to the presentence report is proper in general,
it is not certain that the inquiry would be appropriate in this case.
As will be explained in more detail later, the Supreme Court in
Taylor determined that "burglary" as used in section 924(e) referred
to a generic burglary, with certain elements specified by the Court,
and not simply to any crime that happened to be called burglary under
state law. See Taylor, 495 U.S. at 592. Because some states may
define burglary more broadly, the Court explained that the categorical
approach nonetheless permits the sentencing court to look to "the
charging paper and jury instructions" to determine whether the jury
was "actually required . . . to find all the elements of generic burglary
in order to convict the defendant." Id. at 602.
Taylor thus allows consideration of information other than the fact
of conviction only for the purpose of determining what facts the jury
was required to find to convict the defendant. In effect, then, this
inquiry simply determines the elements of the particular permutation
of a crime with which the defendant was charged when the statute
defines a crime that can be committed in several ways; it does not
allow consideration of the defendant’s particular conduct if that con-
duct does not help determine the elements of the crime with which the
defendant was actually charged. See United States v. Watkins, 54 F.3d
163, 166 (3rd Cir. 1995) (explaining that if the "‘statutory definition
of the prior offense’ is broad enough to permit conviction based on
12 UNITED STATES v. BRANDON
conduct that falls outside of the scope of § 924(e)(2)(B), it becomes
necessary to look beyond the statute of conviction" for the purpose of
determining "whether the trier of fact necessarily found elements that
would qualify the offense as a ‘violent felony’ under § 924(e)(2)(B)"
(emphasis added)); cf. Kirksey, 138 F.3d at 124-25 (explaining that
inquiry under the career offender provisions of the Sentencing Guide-
lines "never involves a factual inquiry into the facts previously
presented and tried. Consistent with a pure categorical approach, the
method of reviewing the charging document requires that we focus
only on the facts necessarily decided by the prior conviction"). Con-
viction under N.C. Gen. Stat. § 90-95(h)(3), the statute underlying
Brandon’s 1994 conviction, requires the jury to find only that the
defendant sold, manufactured, delivered, transported, or possessed
twenty-eight grams or more of cocaine; the jury is not required to
determine the precise amount involved. Thus, looking to the presen-
tence report to determine the amount of cocaine actually possessed by
Brandon might well exceed the inquiry authorized by the Supreme
Court in Taylor.
Moreover, while there is no dispute here as to the quantity involved
in the 1994 conviction, that may not always be the case. In cases
where the underlying conviction is the result of a trial with hotly con-
tested evidence, determination of the quantity involved might well be
difficult, if not impossible, without resort to the mini-trials the
Supreme Court frowned upon in Taylor. See Taylor, 495 U.S. at 601
(noting that "the practical difficulties and potential unfairness of a
factual approach are daunting"); United States v. Preston, 910 F.2d
81, 85 n.3 (3d Cir. 1990) (noting that "a case-by-case, fact-specific
approach" when determining whether a prior conviction satisfies the
requirements of section 924(e) "could force sentencing courts to hold
mini-trials, hear evidence and witnesses and otherwise engage in a
detailed examination of the specific facts involved in the prior
offenses").
Nonetheless, even if inquiry into the amount actually possessed by
Brandon were proper, our conclusion that the 1994 conviction is not
a predicate conviction under section 924(e) would not change. The
record reveals that Brandon’s 1994 conviction involved possession of
thirty-five grams, or approximately one and a quarter ounces, of
cocaine. If it is proper under section 924(e)(2)(A)(ii) to conclude from
UNITED STATES v. BRANDON 13
the quantity of drugs actually possessed by the defendant that a prior
conviction involves possession with intent to distribute, then the
quantity at issue here, a relatively small amount that could reasonably
be intended only for personal use, is insufficient to support that conclu-
sion.4
The government, however, suggests that we can infer the requisite
intent from North Carolina’s designation of Brandon’s crime as "traf-
ficking." According to the government, trafficking as it is commonly
used refers to regular buying and selling. Thus, the government
argues that the North Carolina legislature, by defining Brandon’s pos-
session offense as trafficking, has decided that anyone who possesses
at least twenty-eight grams of cocaine intends to distribute the
cocaine. See State v. Pipkins, 446 S.E.2d 360, 363 (N.C. 1994)
("Unlike N.C.G.S. § 90-95(a)(3), which combats the perceived evil of
individual possession of controlled substances, [the trafficking stat-
ute], by its language, is intended to prevent the large-scale distribution
of controlled substances to the public."); State v. Proctor, 294 S.E.2d
240, 243 (N.C. Ct. App. 1982) ("The purpose behind [the trafficking
statute] is to deter trafficking in large amounts of certain controlled
substances. Our legislature has determined that certain amounts of
controlled substances and certain amounts of mixtures containing
controlled substances indicate an intent to distribute on a large
scale."). The government therefore contends that a conviction in
North Carolina for trafficking by possession necessarily involves pos-
session with intent to distribute.
We believe it is an oversimplification to say that all trafficking
offenses in North Carolina involve an intent to distribute. While the
4
Because it cannot be inferred from the quantity possessed by Brandon
that the 1994 conviction involved an intent to manufacture or distribute,
we do not decide whether the quantity of drugs actually possessed by a
defendant can be considered when determining whether a conviction
under a statute like the one at issue here, which prohibits possession of
certain ranges of drug quantities, is a conviction for a serious drug
offense under section 924(e)(2)(A). Of course, if the statutory quantity
range were sufficient to support a determination that the conviction
involved the requisite intent, then there would be no need to inquire into
the actual amount possessed by the defendant.
14 UNITED STATES v. BRANDON
North Carolina legislature may well have concluded that one who
possesses more than twenty-eight grams of cocaine likely intends to
distribute it, the statute by its terms applies to those who do not intend
to distribute as long as they possess the requisite quantity. In fact, the
presence of an intent to distribute can be considered an aggravating
factor justifying an increase in the sentence imposed for a trafficking
conviction. See State v. Perry, 340 S.E.2d 450, 464 (N.C. 1986)
("Intent to sell is not an element of manufacturing, transporting, or
possessing 28 grams or more of heroin. The reason a person pos-
sesses, manufactures, or transports the heroin is irrelevant. Therefore,
the trial judge properly found the aggravating factor that defendant
had the specific intent to sell the heroin that he possessed." (citation
omitted)); State v. Winslow, 389 S.E.2d 436, 441 (N.C. Ct. App.
1990) (holding that the sentences for defendants convicted of traffick-
ing by possession were properly enhanced upon the trial court’s deter-
mination that they had the specific intent to sell the cocaine). Thus,
while North Carolina may have decided that possession of large quan-
tities of drugs is likely to result in distribution of those drugs and that
possession of such quantities should be punished as severely as actual
distribution, it cannot fairly be said that an intent to distribute is inher-
ent in all violations of N.C. Gen. Stat. § 90-95(h).
Moreover, even if we were to accept the government’s contention
that the word "trafficking" as it is commonly used and as it is in fact
used in the North Carolina statute encompasses an intent to distribute,
the government’s argument would still fail. In Taylor, the Supreme
Court was faced with the question of what crimes should be consid-
ered burglary under section 924(e)(2)(B)(ii), which defines "violent
felony" for purposes of sentencing enhancement to include "burglary,
arson, or extortion, or [other crime that] otherwise involves conduct
that presents a serious potential risk of physical injury to another."
The Court rejected the view that "burglary" as used in section 924
means any crime denominated as burglary under state law. The Court
noted that the states define burglary in widely different ways—for
example, burglary includes shoplifting in California and theft from a
coin-operated vending machine in Texas. See Taylor, 495 U.S. at 591.
The Court concluded that Congress intended the sentencing enhance-
ments of section 924 to apply to those who have engaged in certain
specific conduct, regardless of the label attached to that conduct by
state law:
UNITED STATES v. BRANDON 15
It seems to us to be implausible that Congress intended the
meaning of "burglary" for purposes of § 924(e) to depend on
the definition adopted by the State of conviction. That
would mean that a person convicted of unlawful possession
of a firearm would, or would not, receive a sentence
enhancement based on exactly the same conduct, depending
on whether the State of his prior conviction happened to call
that conduct "burglary."
Id. at 590-91.
The Court determined that "‘burglary’ in § 924(e) must have some
uniform definition independent of the labels employed by the various
States’ criminal codes." Id. at 592. Under Taylor, a prior conviction
is considered a burglary conviction for purposes of section 924(e)
only if the conviction was for a crime "having the basic elements of
unlawful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime." Id. at 599. If the crime does
not have those basic elements, the conviction is not a predicate con-
viction under section 924(e) even if state law considers the crime to
be burglary.
Taylor thus requires us to reject the government’s argument that
Brandon’s conviction must have involved possession with intent to
distribute simply because the North Carolina legislature has labeled
his crime "trafficking." As noted above, states have widely varying
definitions of trafficking. To accept the government’s argument
would mean that defendants with prior convictions for possessing the
same quantity of cocaine would or would not be subject to sentencing
as armed career criminals depending on the state where the underly-
ing conviction occurred, and thus would create the very inconsisten-
cies in punishment that the Supreme Court in Taylor found
impermissible. See Taylor, 495 U.S. at 588-89 ("Congress intended
that the enhancement provision be triggered by crimes having certain
specified elements, not by crimes that happened to be labeled ‘rob-
bery’ or ‘burglary’ by the laws of the State of conviction.").
III.
To summarize, we conclude that "intent to manufacture or distrib-
ute" need not be an element of the crime underlying a state conviction
16 UNITED STATES v. BRANDON
for that conviction to be considered a serious drug offense for pur-
poses of sentence enhancement under section 924(e)(2)(A)(ii). None-
theless, because we cannot say that intent to manufacture or distribute
is inherent in the generic conduct prohibited by the statute and alleged
in the indictment at issue in this case (possession of between twenty-
eight and two hundred grams of cocaine), Brandon’s 1994 conviction
is not a conviction for a serious drug offense under section
924(e)(2)(A)(ii). And without the 1994 conviction, Brandon’s crimi-
nal history does not qualify him as an armed career criminal under
section 924(e). We therefore vacate Brandon’s sentence and remand
for resentencing.
VACATED AND REMANDED