United States v. White , 231 F. App'x 301 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4563
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WALLACE WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(1:05-cr-00506-WDQ-AL)
Argued: May 22, 2007 Decided: July 6, 2007
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Vacated and remanded by unpublished opinion. Judge Shedd wrote the
opinion, in which Judge Motz and Senior Judge Hamilton joined.
ARGUED: Martin Gregory Bahl, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for
Appellant. Paul M. Tiao, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal
Public Defender, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Stephanie A. Gallagher,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland for Appellee.
Unpublished opinions are not binding precedent in this circuit.
SHEDD, Circuit Judge:
Wallace White was convicted of two counts of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g). The
Government sought to have White’s sentence enhanced under the Armed
Career Criminals Act (“ACCA”), asserting that White had previously
been convicted on three separate occasions for “serious drug
offense[s]” within the meaning of 18 U.S.C. § 924(e)(2)(A). The
district court granted the enhancement and sentenced White to 235
months imprisonment. White appeals only his sentence, contending
that the Government failed to prove that one of his three prior
convictions -- an October 2003 conviction for manufacturing or
distributing an unlawful substance in Maryland -- qualified as a
serious drug offense for purposes of § 924(e). For the reasons
that follow, we vacate White’s sentence and remand for
resentencing.
We review de novo the question of whether a prior conviction
is a qualifying offense under the ACCA. United States v. Williams,
326 F.3d 535, 537 (4th Cir. 2003). To qualify as a serious drug
offense, a prior conviction must have carried a maximum statutory
penalty of at least 10 years imprisonment. 18 U.S.C.
§ 924(e)(2)(A)(ii). In deciding that White’s 2003 conviction
qualified as a serious drug offense, the district court considered
two documents: (1) a “True Test Copy” from the District Court of
Maryland, which revealed that White had been previously convicted
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of “CDS MANUFACT/DIST-NARC-ATT” and (2) a “Statement of Probable
Cause,” which detailed the circumstances surrounding White’s prior
arrest. However, the district court did not clearly enunciate its
rationale for granting the enhancement.
The True Test Copy contains references to numerous arcane
acronyms and codes, which the Government contends, if correctly
deciphered, clearly establish that White’s prior conviction carried
a maximum term of imprisonment of 20 years under the applicable
Maryland statute. If the Government is correct, our categorical
approach would dictate that the 2003 conviction was a serious drug
offense and the enhancement was proper. See Taylor v. United
States, 495 U.S. 575, 602 (1990) (discussing the categorical
approach). However, the very limited record before us fails to
identify sufficiently the Maryland materials needed to decipher the
information contained in the True Test Copy. Thus, without some
additional development of the record, we simply cannot determine
from the True Test Copy whether White’s prior conviction qualifies
as a serious drug offense.
The Statement of Probable Cause does not provide the basis for
an enhancement. This document lacks any stamp or seal of any
Maryland court and bears no indication that it was a sworn
statement. Further, the record does not indicate that the
Statement of Probable Cause was ever incorporated into the charging
papers for the 2003 conviction. Therefore, the Statement of
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Probable Cause cannot form the basis of White’s enhancement. Cf.
United States v. Simms, 441 F.3d 313, 315-18 (4th Cir. 2006)
(upholding sentencing court’s reliance on a sworn affidavit and
other materials that were stamped by the state court and
incorporated into the charging documents).
Accordingly, we vacate White’s sentence and remand for
resentencing consistent with this opinion, including a
determination as to whether the True Test Copy, when interpreted in
light of the relevant Maryland authority, mandates that White’s
2003 conviction carried a maximum term of imprisonment of at least
10 years.
VACATED AND REMANDED
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