United States v. Wade ( 2023 )

Case: 22-60184 Document: 00516697112 Page: 1 Date Filed: 03/31/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 31, 2023
No. 22-60184
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Christopher Wade,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:19-CR-153-1
Before Graves, Ho, and Duncan, Circuit Judges.
Per Curiam:*
Defendant Christopher Wade pled guilty to being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g). His criminal history included
a prior state conviction for conspiracy to distribute methamphetamine.
Wade’s presentence report included this conviction as one of the three
predicate offenses required to support an enhancement under the Armed
Career Criminals Act (“ACCA”). Wade objected, arguing that his
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-60184
conviction was not a predicate offense under the ACCA. The district court
overruled Wade’s objection and imposed a sentence of 96 months of
incarceration followed by five years of supervised release. Wade now appeals.
In particular, Wade contends that his prior felony conviction cannot
qualify as a “serious drug offense” because it does not “necessarily entail”
the conduct described in 18 U.S.C. § 924(e)(2)(A)(ii) (i.e., manufacturing,
distributing, or possessing with intent to manufacture or distribute, a
controlled substance). However, we need not decide this issue because any
potential error committed by the district court was harmless. See United
States v. Redmond, 965 F.3d 416, 420–21 (5th Cir. 2020), cert. denied, 141 S.
Ct. 1411 (2021).
If the incorrect guidelines range is used, there are two ways to
demonstrate harmless error. United States v. Guzman-Rendon, 864 F.3d 409,
411 (5th Cir. 2017). “One is to show that the district court considered both
ranges (the one now found incorrect and the one now deemed correct) and
explained that it would give the same sentence either way.” Id. The other is
for the proponent of the sentence to make a convincing showing “(1) that the
district court would have imposed the same sentence had it not made the
error, and (2) that it would have done so for the same reasons it gave at the
prior sentencing.” United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir.
2010).
The government has met its burden under the first test. In this case,
the record shows that the district court was well aware of the different
guidelines ranges proposed by the parties and repeatedly stated that it would
nonetheless impose the same sentence regardless of whether it was correct
about the ACCA enhancement. Specifically, the district court explained that
its sentence was based on several factors, including Wade’s extensive
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criminal history, his family background, his ongoing mental health issues, and
his history of drug use.
In light of the foregoing, we are satisfied that the district court
considered both potential guidelines ranges and was determined to impose
the same sentence regardless. Therefore, any error was harmless. See
Guzman-Rendon, 864 F.3d at 411. AFFIRMED.
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James E. Graves, Jr., Circuit Judge, concurring:
I join the majority opinion in full. However, I write separately to
explain why Wade’s conviction for conspiracy to distribute
methamphetamine should not qualify as a predicate offense under the Armed
Career Criminals Act (“ACCA”).
The ACCA imposes a mandatory 15-year term of imprisonment for
any person convicted of being a felon in possession of a firearm who
previously was convicted of three violent felonies, serious drug offenses, or a
combination of both. 18 U.S.C. § 924(e)(1). The ACCA, in turn, defines
“serious drug offense” to cover “an offense under State law, involving
manufacturing, distributing, or possessing with intent to manufacture or
distribute, a controlled substance” if the offense has a maximum punishment
of ten or more years in prison. 18 U.S.C. § 924(e)(2)(A)(ii).
As relevant here, the scope of “serious drug offense” turns on the
meaning of the term “involving” in 18 U.S.C. § 924(e)(2)(A)(ii). This
definition was recently clarified by the Supreme Court. In Shular v. United
States, the Court held that § 924(e)(2)(A)(ii) “requires only that the state
offense involve the conduct specified in the federal statute; it does not require
that the state offense match certain generic offenses.”140 S. Ct. 779, 782
(2020). In other words, the state offense’s elements must “necessarily
entail” one of the types of conduct identified in the ACCA (i.e.,
manufacturing, distributing, or possessing with intent to manufacture or
distribute, a controlled substance). Id. at 785.
This interpretation narrowed the broad definition this circuit and
others had previously applied by requiring more than a mere connection to
manufacturing, distributing, or possessing with intent to distribute a
controlled substance. See, e.g., United States v. Vickers, 540 F.3d 356, 365-66
(5th Cir. 2008) (explaining that “[t]he expansiveness of the word ‘involving’
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supports that Congress was bringing into the statute’s reach those who
intentionally enter the highly dangerous drug distribution world”); United
States v. King, 325 F.3d 110, 113-114 (2d Cir. 2003) (“[I]nvolving has
expansive connotations . . . encompassing . . . offenses that are related to or
connected with [distributing, manufacturing, or possessing.]”).
Consequently, this suggests that some crimes may involve controlled
substances yet nonetheless fall outside the term “serious drug offense” as
defined in the ACCA. Given the stringency of the ACCA’s mandatory
minimum requirements, it makes sense that Congress did not intend in the
ACCA’s definition of a “serious drug offense” to include conduct with only
a tenuous connection to drug trafficking.
Notwithstanding this change, this court has observed that the Su-
preme Court did more than narrow the definition of “involving.” In United
States v. Prentice, we described how Shular “broaden[ed] the understanding
of ‘a serious drug offense’ by focusing on the underlying conduct.” 956 F.3d
295, 299–300 (5th Cir. 2020) (emphasis in the original). When assessing a
“serious drug offense,” we stated that the emphasis is on whether the of-
fense’s elements “necessarily encompass [] conduct that is a part of a process
of distribution,” as opposed to whether they coincide with elements of a ge-
neric offense. Prentice, 956 F.3d at 300 (emphasis added). “[T]he proper
question,” therefore, “is whether [the defendant’s] state conviction in-
volved conduct amounting to distribution of illegal drugs.” Id.
With this background in mind, in my view, Mississippi’s conspiracy
to distribute methamphetamine offense does not qualify as a “serious drug
offense.” Under Mississippi law, conspiracy to distribute methamphetamine
occurs when two or more persons agree to distribute methamphetamine. See
Miss. Code Ann. § 97-1-1 (conspiracy); Miss. Code Ann. § 41-29-
139(b)(1) (possession with intent to transfer); see also Henderson v. State, 323
So. 3d 1020, 1027 (Miss. 2021). Nothing more is required. “Mississippi,
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unlike many other jurisdictions, does not require proof of an overt act in
furtherance of the agreement to establish a conspiracy.” Peoples v. State, 501
So. 2d 424, 428 (Miss. 1987). Rather, the agreement itself is a completed
criminal offense. Id. “And the conspiracy is a separate and distinct crime
from the substantive offense that is the object of the conspiracy.” Ellis v.
State, 326 So. 2d 466, 468 (Miss. 1976).
Looking at the statutes of conviction, it is clear that this offense falls
outside the ACCA’s definition of a “serious drug offense,” as it does not
necessarily entail conduct that “is a part of a process of distribution.” See
Prentice, 956 F.3d at 300. The conduct of manufacturing, distributing, or
possessing with intent to manufacture or distribute is neither inherent nor
required for a conviction under Mississippi law. Contrarily, the State
routinely prosecutes and convicts defendants for conspiring even if they have
only made an agreement. See, e.g., Berry v. State, 996 So. 2d 782, 789 (Miss.
2008) (“The State only had to prove that two or more persons agreed to
commit a crime.”). Because a mere agreement to distribute
methamphetamine does not amount to manufacturing, distributing, or
possessing with intent to manufacture or distribute a controlled substance,
Wade’s conviction does not qualify as a “serious drug offense” under the
ACCA.
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