United States v. Bryant Lockett , 359 F. App'x 598 ( 2009 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 09a0832n.06
No. 07-6403
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 29, 2009
UNITED STATES OF AMERICA, LEONARD GREEN, Clerk
Plaintiff-Appellee,
ON APPEAL FROM THE
v. UNITED STATES DISTRICT
COURT FOR THE EASTERN
BRYANT LOCKETT, DISTRICT OF KENTUCKY
Defendant-Appellant.
Before: BATCHELDER, Chief Judge; GIBBONS, Judge; MALONEY, District Judge.*
PAUL MALONEY, Chief District Judge.
On April 12, 2006, a federal grand jury in the Eastern District of Kentucky issued an
indictment charging defendant-appellant Bryant Lockett (“Lockett”) with one count of possession
with intent to distribute (“PWID”) five grams or more of cocaine base (“crack”), a schedule II
controlled substance, on December 20, 2005 in violation of 21 U.S.C. § 841(a)(1). A superseding
indictment filed on October 11, 2006 added a second count of distribution of a substance or mixture
containing a detectable amount of crack on August 13, 2006, again in violation of 21 U.S.C. §
*
The Honorable Paul L. Maloney, Chief United States District Judge, United States District
Court for the Western District of Michigan, sitting by designation.
841(a)(1). Lockett was arrested, arraigned, and pled not guilty on October 25, 2006, and the court
appointed counsel to represent him on October 26, 2006.
On November 10, 2006, the prosecution filed a Notice of Prior Conviction Information,
which stated, in its entirety:
Comes now the United States of America, by and through counsel, [name omitted],
Assistant United States Attorney for the Eastern District of Kentucky, and pursuant
to 21 U.S.C. § 851(a)(1), hereby files this prior Conviction Information, stating that
Defendant’s previous conviction listed below will be relied on to permit increased
punishment by reason of one or more prior felony drug convictions as set forth in 21
U.S.C. § 841.
On or about March 8, 1995, the Defendant was convicted of the offense of Drug
Trafficking (F-3),a felony, in the Court of Common Pleas for Hamilton County,
Ohio, in case number B937725.
The Notice failed to specify the Ohio statutory provision under which Lockett had been convicted.1
On December 18, 2006, Lockett was rearraigned and pled guilty to count one, in return for
the prosecution’s oral promise to request the dismissal of count two. On June 6, 2007, Lockett filed
an Objection to Prior Conviction Information which stated, in its entirety,
Comes now the Defendant, Bryant Lockett, by and through counsel, and pursuant to
21 U.S.C. § 851 hereby objects to the use of the Defendant’s prior conviction in the
Court of Common Pleas for Hamilton County, Ohio in case number B937725 to
permit increased punishment by reason of one or more drug felony convictions as set
forth in 21 U.S.C. § 841.
The Defendant pled guilty to count one of violating ORC 2925.03 and counts two
and three and the specifications to counts one, two and three were dismissed. ORC
2925.03A(6), A(9) convictions have been determined not to qualify as “controlled
substance offenses” under USSG 4B1.1. United States v. Montanez, 442 F.3d 485,
[sic, no page number] (6th Cir. 2006). A review of the information provided in the
Presentence Investigation Report and a review of the information available on the
1
The 1995 date of conviction listed in the prosecution’s Notice was erroneous. As the
presentence report makes clear, Lockett was in fact convicted in January 1994.
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Hamilton County Clerk’s website, failed to specify under which part of ORC 2925.03
Defendant was convicted. Therefore, until it is determined that the section under
which Defendant was convicted actually qualifies as a prior drug offense under
USSG 4B1.1, Defendant should not be subject to the enhancement of 21 U.S.C. §
841 as having a prior drug conviction.
(Paragraph break added).
On June 11, 2007, the prosecution filed a response to the objection. Among other things, the
prosecution’s response noted, “The facts in this case are distinguishable from those in Montanez.
Mr. Lockett’s prior conviction at issue was for ‘Aggravated Trafficking (Sale).’ It was not for any
form of possession.” However, the prosecution still did not specify the statutory provision for that
prior Ohio conviction, let alone provide documentary evidence thereof. The prosecution’s response
concluded by stating, “In addition, Mr. Lockett has two other qualifying felony convictions for
violent offenses that make him a career offender even without any consideration of the felony drug
conviction listed in the Prior Conviction Information.”
Lockett filed a sentencing memorandum in June 2007. On November 16, 2007, consistent
with the oral agreement, the district court dismissed count two and sentenced Lockett to 131 months
of imprisonment and eight years of supervised release on count one.
I.
On appeal, Lockett raises three issues regarding his sentence:
(1) whether the district court erred by enhancing his sentence under 21 U.S.C. §
841(b)(1)(B) based on his prior conviction for drug trafficking in violation of OHIO
REV . CODE § 2925.03, where the record does not specify the subsection of
conviction;
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(2) whether the district court erred in calculating his U.S.S.G. § 4B1.1 career-offender
guideline sentence range based on his maximum possible sentence as enhanced by
21 U.S.C. § 841(b)(1)(B);
(3) whether the disparity in 21 U.S.C. § 841(b) between the mandatory minimum
sentence for a given quantity of cocaine base and the mandatory minimum sentence
for that same quantity of cocaine powder violates his right to equal protection of the
law under the Fifth Amendment’s Due Process Clause.
For the reasons that follow, we reject Lockett’s arguments. Lockett’s argument on issue one
lacks merit, because at the time when he committed the violation of OHIO REV . CODE § 2925.03, all
violations of that statute constituted at least a third-degree felony and were potentially punishable
by more than twelve months imprisonment under Ohio statute. Thus, the district court did not err
in counting his prior conviction under OHIO REV . CODE § 2925.03 as a predicate “felony drug
offense” helping to qualify him for a 21 U.S.C. § 841(b)(1)(B) enhancement. Therefore, Lockett’s
first argument on issue two also lacks merit, i.e., that a court cannot calculate a career-offender
guideline based on an enhancement that was itself improper.
Lockett’s second argument on issue two lacks merit, because there is nothing improper about
considering the maximum potential enhanced sentence for purposes of a career-offender calculation.
Lockett’s argument on issue three is squarely foreclosed by binding precedent rejecting Equal
Protection challenges to the crack/powder cocaine guideline disparity.
II.
This court has jurisdiction of this appeal pursuant to 28 U.S.C. § 1291.
III.
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The facts underlying Lockett’s instant conviction are not relevant to his assignments of error,
nor are the facts leading to his prior conviction under OHIO REV . CODE § 2925.03, and he does not
contest either set of facts. See, e.g., United States v. Pinkney, 247 F. App’x 717, 717 (6th Cir. 2007)
(per curiam) (forgoing recitation of facts and noting that “Pinkney does not contest the facts
underlying her conviction, and the details are not relevant to the issue on appeal”); United States v.
Anglin, 169 F. App’x 971, 972 (6th Cir. 2006) (“Anglin pled guilty to the bank robbery, and he does
not challenge that plea on appeal. The facts of the robbery are therefore not material to this
appeal.”), cert. denied, 549 U.S. 1213 (2007).
IV.
Lockett summarizes his first issue as follows:
The trial Court violated Lockett’s Fifth Amendment rights when his sentence was enhanced
under 21 U.S.C. § 841(b)(1)(B)(iii) by the use of an invalid [sic] prior drug felony
conviction. The United States filed a Prior Conviction Information based on an Ohio
Conviction, Case Number B937725. (R.10 . . . .) Subsequently, Lockett filed an objection
to Prior Conviction Information. (R.20 . . . .)
Sections of the Ohio statute under which Lockett was convicted was [sic] previously
determined by [the] United States Court of Appeals for the Sixth Circuit to be
uncountable as a prior drug felony. No other Prior Conviction Information was filed
by the United States. The minimum sentence for Lockett under 21 U.S.C. §
841(b)(1)(B)(iii) should not have been enhanced as the result of a prior drug felony
conviction.
Def.’s Br. at 10.
Whether Lockett’s prior conviction under OHIO REV . CODE § 2925.03 qualifies as a “felony
drug offense” for purposes of 21 U.S.C. § 841(b)(1)(B) is a question of law which we review de
novo. See United States v. Rolfe, 997 F.2d 189, 190 (6th Cir. 1993) (“Rolfe contends that §
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841(b)(1)(B) does not apply to his sentence because his prior conviction was for a misdemeanor
punishable by as much as two years in prison (‘two-year misdemeanor’) rather than for a ‘felony.’
Specifically, Rolfe argues that the 1980 conviction was labeled a misdemeanor and not a felony and
thus should not be construed as a felony simply because of the two-year penalty. Since this is a
question of law, the Court reviews the district court’s determination de novo.”) (citing United States
v. Hans, 921 F.2d 81 (6th Cir. 1990)).2
Title 21 U.S.C. “§ 841(b)(1)(B) states that for any violation of § 841(a) involving 500 grams
or more of cocaine or 5 grams or more of cocaine base, there is a statutory mandatory minimum
sentence of five to forty years imprisonment.” United States v. Jemison, 310 F. App’x 866, 880 (6th
Cir.), cert. denied, – U.S. –, 130 S. Ct. 258 (U.S. 2009) (No. 09-5394). By statute, “[h]owever, a
defendant with a ‘prior conviction for a felony drug offense . . . shall be sentenced to a term of
imprisonment which may not be less than ten years and not more than life imprisonment.’”3
Jemison, 310 F. App’x at 880 (quoting 21 U.S.C. § 841(b)(1)(B) (text following but not part of §
841(b)(1)(B)(viii)); see, e.g., United States v. Mooneyham, 473 F.3d 280, 294 (6th Cir.) (“With a
2
Accord United States v. Pinckney, 938 F.2d 519, 522 (4th Cir. 1991) (prior conviction for
PWID marijuana, although classified as a misdemeanor under South Carolina law, was properly
deemed a felony because it was punishable by up to five years imprisonment).
3
When a defendant faces a statutory minimum sentence, the district court’s ability to depart
downward below that minimum is limited to the authority conferred by two provisions: 18 U.S.C.
§ 3553(e), which allows for departures based upon the government’s motion indicating that a
defendant has provided particularly substantial assistance in the investigation of other suspects, and
18 U.S.C. § 3553(f), which is known as the “safety valve” provision. See United States v. Stewart,
306 F.3d 295, 331 n.21 (6th Cir. 2002). In United States v. Burke, 237 F.3d 741, 743 (6th Cir.
2001), “we recognized that all of the courts that have addressed the issue have determined that these
two provisions represent the exclusive means by which a district court may depart below a statutory
minimum.” Stewart, 306 F.3d at 331 n.21 (collecting cases) (emphasis added).
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total offense level of 28 and a criminal history category of IV, the guideline range for imprisonment
was 110 to 137 months. However, Mooneyham was subject to a statutory mandatory minimum
sentence of ten years, pursuant to 21 U.S.C. § 841(b)(1)(B), because of a prior felony drug
conviction in 1998 and, thus, his applicable guideline range was effectively 120 to 137 months.”),
cert. denied, – U.S. –, 128 S. Ct. 531 (2007).
Section 841(b) itself does not define the term “felony drug offense” or even the term
“felony.” However, title 28 U.S.C. § 802(13) defines “felony” to mean any “offense classified by
applicable Federal or state law as a felony.” To define the compound term “felony drug offense,”
our section 841(b) cases consult 21 U.S.C. § 802(44), which defines it as an offense “punishable by
imprisonment for more than one year under any law . . . that prohibits or restricts conduct relating
to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” See Jemison,
310 F. App’x at 880 (emphasis added). Accord United States v. Burgess, 478 F.3d 658, 662 (4th Cir.
2007) (“Like the First Circuit, whose reasoning we adopt, we believe that ‘[b]ecause the term ‘felony
drug offense’ is specifically defined in § 802(44), and § 841(b)(1)(A) makes use of that precise term,
the logical, commonsense way to interpret ‘felony drug offense’ in § 841(b)(1)(A) is by reference
to the definition in § 802(44).’”) (citing United States v. Roberson, 459 F.3d 39, 52 (1st Cir. 2006),
cert. denied, 549 U.S. 1214 (2007)), aff’d, – U.S. –, 128 S. Ct. 1572 (2008).
“The use of the word ‘punishable’ rather than ‘punished’ makes clear that ‘it is not the actual
punishment imposed but that which the statute authorizes which determines whether a crime is a
felony or a misdemeanor.’” Jemison, 310 F. App’x at 880 (quoting Barde v. United States, 224 F.2d
959, 959 (6th Cir. 1955) (citing Cartwright v. United States, 146 F.2d 133, 135 (5th Cir. 1945))).
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The Supreme Court unanimously reaffirmed this principle, and clarified the criteria for a §
841(b)(a)(A) “felony drug offense”, in Burgess v. United States, – U.S. –, 128 S. Ct. 1572 (2008).
Burgess pled guilty to PWID 50 grams or more of crack, an offense which presumptively carries a
10-year mandatory minimum sentence under 21 U.S.C. § 841(b). See Burgess, – U.S. at –, 128 S. Ct.
at 1575-76. He had a prior South Carolina drug conviction, however, so the government sought to
enhance his instant-offense sentence pursuant to 21 U.S.C. § 841(b)(a)(A), which doubled the
mandatory minimum sentence to twenty years. See id., – U.S. at –, 128 S. Ct. at 1576. Because
South Carolina law called the prior offense a misdemeanor, Burgess contended that it did not
constitute a predicate offense for application of the § 841(b)(a)(A) enhancement. Burgess argued
that “a prior drug offense does not warrant an enhanced § 841(b)(a)(A) sentence unless it is both (1)
classified as a felony under the law of the punishing jurisdiction [the State of South Carolina], per
§ 802(13); and (2) punishable by more than one year’s imprisonment, per § 802(44).” See id., – U.S.
at –, 128 S. Ct. at 1576.
The Supreme Court ruled in favor of the prosecution, holding that “all defendants whose
prior drug crimes were punishable by more than one year in prison would be subject to the §
841(b)(a)(A) enhancement, regardless of the punishing jurisdiction’s classification of the offense.”
Burgess, – U.S. at –, 128 S. Ct. at 1577. The Court explained at some length why § 803(44)’s
definition of “felony drug offense” provides “the exclusive definition of “felony drug offense” for
purposes of § 841(b)(a)(A), without reference to the definition of “felony” in § 802(13). See id., –
U.S. at –, 128 S. Ct. at 1577-80.
Lockett’s prior conviction was for a violation of OHIO REV . CODE § 2925.03.
Lockett argues that in the prior Ohio case, he
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pled guilty to count one of violating ORC 2925.03 and . . . the specifications . . . were
dismissed and he was sentenced to one year in prison with credit for 35 days already
served.
* * *
A review of the information provided in the Presentence Report and a review of the
information available on the Hamilton County [Ohio] website, failed to specify under
which part of ORC 2925.03 Lockett was convicted. (R. 29, Sealed Presentence
Investigation Report, pg 6 . . . .
* * *
In response to Lockett’s Objection to Prior Conviction Information, the probation
officer included additional information that he located with regard to the prior
conviction referenced [sic] in the presentence report. * * * [But] the probation
officer was unable to identify the specific Ohio statute section under which Lockett
was found guilty or sentenced. Without the specific statute section and the fact that
Lockett was sentenced to only one year in prison, there is sufficient doubt as to
whether Lockett’s prior conviction qualifies as a prior drug conviction under 21
U.S.C. § 841(b)(1)(B)(iii).
* * *
* * * The trial court did not make any findings on the weight of the drugs from the
Ohio conviction or determined [sic] which provisions of the Ohio statute it
consider[ed] Lockett to have been convicted [sic].
Def.’s Br at 13 and 14-15 and 16.
The government’s response brief on appeal failed to point to any document in the record
which proves that Lockett was convicted under a subsection of OHIO REV . CODE § 2925.03 which
constitutes a first-, second-, third- or fourth-degree felony. The government’s brief stated only that
“Lockett does not dispute the probation office’s determination that his conviction under OHIO REV .
CODE § 2925.03 was for a third[-]degree felony.” Gov’s Br at 5 (citing R. 29, Pre-Sentence Report’s
Second Addendum). This is inaccurate. As Lockett points out, see Def.’s Reply Br at 2, before
sentencing he vigorously contested the notion that his prior conviction under OHIO REV . CODE §
2925.03 was more than a fifth-degree felony, and he continues to contest that issue on appeal.
Lockett’s consistent theory about his prior Ohio conviction has been that
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[s]ince all of the specifications, the penalty which Lockett faced was specified by
ORC 2925.03(C)(4)(a),a fifth[-]degree felony. Lockett, in fact, was sentenced to one
year in accordance with the maximum for a fifth[-]degree felony.
The United States, in its brief, incorrectly claims that the offense for which Lockett
was convicted was a third[-]degree felony punishable [by] up to five years in prison.
For that to be accurate, Lockett would have to have been convicted of Count 1 with
a specification such as [those stated] in ORC 2925.03(C)(4)(c), (d).
Def.’s Reply Br at 1-2. Moreover, at oral argument, the government’s counsel did not identify any
document in the record which conclusively established the subsection of OHIO REV . CODE § 2925.03
(1993) under which Lockett was convicted.
Nonetheless, the government prevails on this issue, because Lockett’s conviction under OHIO
REV . CODE § 2925.03 (1993) necessarily made him eligible for more than one year of imprisonment.
In January 1994, when Lockett was convicted of violating OHIO REV . CODE § 2925.03, the offense-
definition portion of that section provided, in pertinent part,
(A) No person shall knowingly do any of the following:
(1) Sell or offer to sell a controlled substance in an amount less than the
minimum bulk amount;
(2) Prepare for shipment, ship, transport, deliver, prepare for
distribution, or distribute a controlled substance, when the
offender knows or has reason to believe that the controlled
substance is intended for sale or resale by the offender or
another person.
(3) Cultivate, manufacture, or otherwise engage in any part of the
production of a controlled substance;
(4) Possess a controlled substance in an amount equal to or
exceeding the bulk amount, but in an amount less than three
times that amount;
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(5) Sell or offer to sell a controlled substance in an amount equal
to or exceeding the bulk amount, but in an amount less than
three times that amount;
(6) Possess a controlled substance in an amount equal to or
exceeding three times the bulk amount, but in an amount less
than one hundred times that amount;
(7) Sell or offer to sell a controlled substance in an amount equal
to or exceeding three times the bulk amount, but in an amount
less than one hundred times that amount;
(8) Provide money or other items of value to another person with
the purpose that the recipient of the money or items of value
would use them to obtain controlled substances for the
purpose of selling or offering to sell the controlled substances
in amounts exceeding a bulk amount or for the purpose of
violating division (A)(3) of this section;
(9) Possess a controlled substance in an amount equal to or
exceeding one hundred times the bulk amount;
(10) Sell or offer to sell a controlled substance in an amount equal
to or exceeding one hundred times the bulk amount;
(11) Administer to a human being, or prescribe or dispense for
administration to a human being, any anabolic steroid not
approved by the [FDA] for administration to human beings.
(B) This section does not apply to any of the following: * * *
In January 1994, the penalty portion of OHIO REV . CODE § 2925.03 provided as follows for Schedule
I and Schedule II drugs other than marijuana:
(C) If the drug involved in the violation is any compound, mixture, preparation,
or substance included in schedule I, with the exception of marihuana, or in
schedule II, whoever violates this section is guilty of aggravated trafficking.
(1) Where the offender has violated division (A)(1) of this
section, aggravated trafficking is a felony of the third degree,
except that aggravated trafficking is a felony of the second
degree[,] if any of the following apply: * * *
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(2) Where the offender has violated division (A)(2) of this
section, aggravated trafficking is a felony of the third degree,
except that, if the offender previously has been convicted of
a felony drug abuse offense, aggravated trafficking is a felony
of the second degree.
(3) Where the offender has violated division (A)(3) of this
section, aggravated trafficking is a felony of the second
degree, and the court shall impose a sentence of actual
incarceration of three years, except that, if the offender has
previously been convicted of a felony drug abuse offense,
aggravated trafficking is a felony of the first degree, and the
court shall impose a sentence of actual incarceration of five
years.
(4) Where the offender has violated division (A)(4) of this
section, aggravated trafficking is a felony of the third degree,
and the court shall impose a sentence of actual incarceration
of eighteen months, except that, if the offender previously has
been convicted of a felony drug abuse offense, aggravated
trafficking is a felony of the second degree, and the court shall
impose a sentence of actual incarceration of three years.
(5) Where the offender has violated division (A)(5) of this
section, aggravated trafficking is a felony of the second
degree, and the court shall impose a sentence of actual
incarceration of three years, except that aggravated trafficking
is a felony of the first degree and the court shall impose a
sentence of actual incarceration of five years, if any of the
following apply: * * *
(6) Where the offender has violated division (A)(6) of this
section, aggravated trafficking is a felony of the second
degree, and the court shall impose a sentence of actual
incarceration of three years, except that the court shall impose
a sentence of actual incarceration of at least seven years, if
any of the following apply: * * *
(7) Where the offender has violated division (A)(7) of this
section, aggravated trafficking is a felony of the first degree,
and the court shall impose a sentence of actual incarceration
of five years, except that the court shall impose a sentence of
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actual incarceration of seven years, if any of the following
apply: * * *
(8) Where the offender has violated division (A)(8) of this
section, aggravated trafficking is a felony of the first degree,
and the court shall impose a sentence of actual incarceration
of seven years, except that, if the offender previously has been
convicted of a felony drug abuse offense, the court shall
impose a sentence of actual incarceration of ten years.
(9) Where the offender has violated division (A)(9) of this
section, aggravated trafficking is a felony of the first degree,
and the court shall impose an indefinite term of imprisonment
of fifteen years to life for the offense, with the minimum term
of fifteen years being a sentence of actual incarceration.
(10) Where the offender has violated division (A)(10) of this
section, aggravated trafficking is a felony of the first degree,
and the court shall impose an indefinite term of imprisonment
of fifteen years to life for the offense, with the minimum term
of fifteen years being a sentence of actual incarceration,
except that the court shall impose an indefinite term of twenty
years to life for the offense, with the minimum term of twenty
years being a sentence of actual incarceration, if any of the
following apply: * * *
OHIO REV . CODE § 2923.05(C).
In other words, if Lockett’s prior conviction was for any violation of OHIO REV . CODE §
2923.05(A)(1) or (A)(2), he was guilty of at least a third-degree felony even without specifications.
See OHIO REV . CODE § 2925.03. In January 1994, Ohio statute provided that “[f]or a felony of the
third degree, the term shall be one, one and one-half, or two years.” OHIO REV . CODE §
2929.11(D)(1) (1993).
Therefore, no matter which offense described in OHIO REV . CODE § 2925.03(A) (1993)
Lockett committed, OHIO REV . CODE § 2925.03(C) classified his offense as no less than a third-
degree felony and allowed or required a sentence of more than twelve months imprisonment. That
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renders Lockett’s prior conviction a “felony drug offense” as defined by 21 U.S.C. § 802(44) and
therefore 21 U.S.C. § 841(b)(1)(B).
V.
Lockett further presents no authority for his suggestion that the amount of drugs involved in
his prior OHIO REV . CODE § 2925.03 offense affects whether that conviction qualifies as a felony
drug offense for purposes of 21 U.S.C. § 841(b)(1)(B). That subsection makes no reference to drug
weight or quantity, nor do any of our precedents applying it. Likewise, 21 U.S.C. § 802(44), whose
definition of “felony drug offense” is adopted for 21 U.S.C. § 841(b)(1)(B) enhancement analysis,
makes no reference to drug weight or quantity, nor do any of our precedents applying it. See United
States v. Spikes, 158 F.3d 913, 932 (6th Cir. 1998) (concluding that “felony drug offense” as used
in 21 U.S.C. § 802(44) “includes any criminal conduct relating to narcotics, including simple
possession, which a state has proscribed as a felony.”) (citations omitted); accord United States v.
Brock, 253 F. App’x 260, 263 (4th Cir. 2007) (per curiam) (“We further reject Brock’s assertion that
his prior narcotics conviction should not have been used as a predicate conviction because the drug
quantity involved in that conviction did not meet the statutory threshold. However, the drug quantity
involved in the prior narcotics conviction is not relevant; all that is relevant is that Brock had a prior
felony conviction for a narcotics offense . . . .”).1
1
Indeed, numerous sister courts have upheld application of the section 841(b)(1)(B)
enhancement where the prior state-court conviction was for mere simple possession of an illegal drug
– without even discussing whether the state statute of conviction required any particular drug
quantity as an element. See, e.g., United States v. Kateusz, 238 F. App’x 184, 185 (8th Cir. 2007)
(per curiam); United States v. Turner, No. 94-1490, 41 F.3d 1511, 1994 WL 652211, *1 (7th Cir.
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Finally, Lockett’s reliance on United States v. Montanez, 442 F.3d 485 (6th Cir. 2006) is
misplaced, as Lockett has confused the requirements of a 21 U.S.C. § 841(b)(1)(B) enhancement and
the requirements for a career-offender enhancement based on a prior “controlled substance offense.”
The Montanez opinion never even mentions 21 U.S.C. § 841(b)(1)(B). The defendant there pled
guilty to one count of PWID an unspecified amount of cocaine in violation of 21 U.S.C. § 841(a).
His appeal challenged the district court’s determination that he was a career offender, under U.S.S.G.
§ 4B1.1, based on his two prior convictions under Ohio Rev. Code 2925.03(A)(6) and (9). The
career-offender guideline provides that a defendant is a career offender 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.
Montanez, 442 F.3d at 488 (quoting U.S.S.G. § 4B1.1) (emphasis added). The career-offender
guideline makes no mention of a “felony drug offense,” only violent felonies and controlled-
substance felonies.
To justify the designation of Montanez as a career offender under U.S.S.G. § 4B1.1, the
government had to prove that he had two prior convictions for violent felonies and/or controlled-
substance felonies. There was no allegation that Montanez had two priors for violent felonies, so
the government had to prove that he had two priors for controlled-substance felonies. For purposes
of career-offender status, the guidelines defined “controlled substance offense” as
Nov. 18, 1994) (per curiam); United States v. Memminger, 145 F. App’x 813, 814-15 (4th Cir. 2005)
(per curiam).
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an offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or the possession of
a controlled substance (or counterfeit substance) with intent to manufacture, import,
export, distribute, or dispense.
U.S.S.G. § 4B1.2(b). The panel recognized that under this definition, “simple possession – that is,
possession without the proof beyond a reasonable doubt of the requisite intent to ‘manufacture,
import, export, distribute, or dispense’ – is not a controlled substance offense.” Montanez, 442 F.3d
at 488. Montanez had been convicted of violating OHIO REV . CODE § 2925.03(A)(6) and (9), which
provided,
(A) no person shall knowingly do any of the following:
* * *
(6) Possess a controlled substance in an amount equal to or
exceeding three times the bulk amount, but in an amount less
than one hundred times that amount;
* * *
(9) Possess a controlled substance in an amount equal to or
exceeding one hundred times the bulk amount[.]
Montanez, 442 F.3d at 488 (quoting former OHIO REV . CODE § 2925.03(A)(6) and (9)).
Quite unlike Lockett, Montanez’s argument was that
because his offenses involve only the knowing possession of drugs, and do not have,
as an element of the crime, proof of “intent to manufacture, import, export, distribute,
or dispense,” U.S.S.G. § 4B1.1, then his convictions cannot qualify as controlled
substance offenses under the Guidelines [for purpose of career-offender designation].
Montanez, 442 F.3d at 489. Thus, Montanez is readily distinguishable from the instant case, and is
of no avail to Lockett.
VI.
Lockett summarizes his second claimed error as follows:
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The trial Court violated Lockett’s Fifth Amendment rights when he was sentenced
as a career offender using an enhanced current offense as a basis for calculating his
sentencing guideline. Lockett was designated as a career offender based on two prior
violent felony convictions. The trial Court erred when it based Lockett’s sentence
as a career offender on an improperly enhanced current offense. A career offender’s
sentencing guideline is based on the maximum sentence for his current offense. In
order to correctly calculate a career offender guideline, the maximum sentencing
range for the current offense must be correctly ascertained.
Lockett’s maximum sentence, for the purpose of determining his sentencing
guidelines [sic] as a career offender, were [sic] incorrectly calculated for two reasons.
The Court enhanced Lockett’s current offense based on an uncountable prior drug
conviction. It is impermissible double counting to use the maximum sentence after
enhancement to calculate the sentencing guideline for a career offender.
The maximum sentence Lockett was facing prior to enhancement was 40 years in
prison. After enhancement, Lockett’s maximum sentence was life in prison. When
a maximum sentence of life in prison was applied to the career offender guideline in
USSG § 4B1.1(b), Lockett’s offense level was designated as 37. If the current
offense was not enhanced, Lockett’s offense level would be 34. Both levels would
be subject to a 3[-]level reduction for acceptance [of responsibility] and a criminal
history [category] of VI. The resulting minimum sentences for each is [sic] 262
months and 188 months respectively.
Lockett was given a 50% reduction on his sentence for his substantial assistance
under USSG § 5K1.1. Instead of being sentenced to 131 months, Lockett should
have been sentenced to no more than 94 months.
Def.’s Br. at 10-11.
What constitutes the proper procedure when calculating a career-offender guideline range is
a legal question which we review de novo. See United States v. Westerfield, 284 F. App’x 315, 320
(6th Cir. 2008) (“We review de novo questions involving the interpretation of the Sentencing
Guidelines, including the district court’s determination that defendant is a career offender under
U.S.S.G. § 4B1.1.”) (citing Mallett v. United States, 334 F.3d 491, 500 (6th Cir. 2003)), vacated on
other grounds, – U.S. –, 129 S. Ct. 1314 (2009); United States v. Snowden, 218 F. App’x 443, 446
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(6th Cir. 2007) (“Legal conclusions regarding the Sentencing Guidelines are also reviewed de
novo.”) (citing United States v. Latouf, 132 F.3d 320, 331 (6th Cir. 1997)).
Lockett makes clear that he “is not challenging his [designation] as a career offender.” Def.’s
Reply Br at 4. Rather, Lockett has two objections to the district court’s calculation of the sentence
which results from his admittedly correct designation as a career offender.
First, Lockett contends that the erroneous application of the 21 U.S.C. § 841(b)(1)(B)
enhancement for a prior felony drug offense gave the district court the wrong starting point for
calculation of the appropriate career-offender sentence. Because we have concluded that the prior
felony drug enhancement was proper, Lockett is left only with his second objection: even if his
sentence was properly enhanced for a prior felony drug offense, “it is impermissible double counting
when ‘the same aspect of a defendant’s conduct factors into his sentence in two separate ways.’”
Def.’s Br at 17 (quoting United States v. Cousins, 469 F.3d 572 (6th Cir. 2006)). Specifically,
[t]he prior [Ohio] drug conviction factored into Lockett’s sentence in two separate
ways. First, Lockett’s sentence was enhanced by his prior drug conviction which
caused his maximum sentence to increase from 40 years to life in prison.
Without enhancement or career offender status, Lockett’s sentencing guidelines [sic,
his recommended Guideline term of imprisonment] would have been 77-96
months[,] but with a mandatory minimum sentence of 120 months per 21 U.S.C. §
841(b)(1)(B)(iii).
Without enhancement of Lockett’s current offense as a career offender, Lockett’s
sentencing guidelines would have been 188-235 [months]. As calculated by US
Probation, Lockett’s sentencing guidelines were calculated using both the enhanced
sentence with the career offender status added on afterward which resulted in a
sentencing guideline of 262-327 months.
Therefore, the enhancement played into Lockett’s sentence twice by raising Lockett’s
offense maximum to life and then by raising his offense level from 34 to 37 as a
career offender based on the enhanced penalty.
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Def.’s Br at 18-19 (paragraph break added). This objection lacks merit for two reasons.
First, as the government points out, see Gov’s Br at 8, “Lockett’s status as a career offender
was based on his two prior assault convictions without any consideration of his prior [Ohio] drug
conviction.” Lockett unequivocally admits this, stating, “Lockett was designated as a career offender
based on two prior violent felony convictions.” Def.’s Br at 18 (citing R. 29, PSR at 21).
Second, even if Lockett’s career offender designation is based partly on his Ohio drug-
trafficking conviction, that would not constitute impermissible double-counting under our
precedents. Title 28 U.S.C. § 994, entitled Duties of the Commission, provides as follows:
The Commission shall assure that the guidelines specify a sentence to a term of
imprisonment at or near the maximum term authorized for categories of defendants
in which the defendant is eighteen years or older and –
(1) has been convicted of a felony that is –
(A) a crime of violence; or
(B) an offense described in 21 U.S.C. 841 . . . 21 U.S.C. 952(a),
955, 959 . . . and chapter 705 of title 46; and
(2) has previously been convicted of two or more prior felonies, each of which
is –
(A) a crime of violence; or
(B) an offense described in 21 U.S.C. 841 . . . 21 U.S.C. 952(a),
955, 959 . . . and chapter 705 of title 46.
We have interpreted 28 U.S.C. § 994(h)’s directive as follows:
[T]he plain language of § 994(h) dictates that “maximum term authorized” refers to
the enhanced statutory maximum. Following “maximum term authorized” in the
statute is the phrase “for categories of defendants in which the defendant is eighteen
years old or older and [has been convicted of a crime of violence or specified drug
offense and has two such prior convictions].” Accordingly, this phrase defines or
modifies “maximum term authorized” and thus clearly and unambiguously directs
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the Commission to use the enhanced statutory maximum in promulgating the
sentencing guidelines for repeat offenders. * * *
This interpretation is consistent with the case law prior to the amendment, which
universally held that using the enhanced penalty as the “Offense Statutory
Maximum” in determining a career offender’s offense level carried out Congress’
intent that [repeat felony] drug offenders receive sentences at or near the statutory
maximum.
United States v. Branham, 97 F.3d 835, 846 (6th Cir. 1996) (brackets in original, emphasis added).
The same decision emphatically rejected Lockett’s “double-counting” argument – so
emphatically, in fact, that this court invalidated a Guideline amendment which was based on it.
Branham 97 F.3d at 844. See United States v. LaBonte, 520 U.S. 751 (1997); United States v.
Chingman, 89 F. App’x 504 (6th Cir. 2004). Branham remains good law in our circuit and squarely
forecloses Lockett’s double-counting objection to the calculation of his career-offender guideline
range. See, e.g., Bugg v. United States, No. 1:05-cv-316, 2007 WL 445812, *4-5 (E.D. Tenn. Feb.
5, 2007) (holding, based on LaBonte and Branham, that use of enhanced current offense to determine
career-offender guideline range was not impermissible double-counting).
VII.
Lockett summarizes his third assignment of error as follows:
The District Court violated the Equal Protection component of the Due Process
Clause when Lockett was sentenced under the mandatory minimum clause of 21
U.S.C. § 841(b)(1)(B)(iii). The mandatory minimum sentence for crack cocaine
violates the Equal Protection component of the Due Process clause because the same
penalty for cocaine base [“rock”] requires ten times as much cocaine hydrochloride
[powder]. The “Cocaine and Federal Sentencing Policy Report” (Policy Report) sent
to Congress in May 2007 outlines the unwarranted disparity between sentences for
crack and cocaine. The 100/1 ratio for powder versus crack cocaine for purposes of
sentencing was determined to be excessive. There is no scientific basis for the high
ratio.
-20-
Subsequently, the November 1, 2007 USSG revised the ratios[,] which reduced the
penalty for crack cocaine for quantities between 250 mg and 4.5 Kg. Smaller ratios
were used to establish the guidelines tables[,] with the lowest ratio being 25/1 at
offense level 26 (the original base offense level for Lockett).
By applying the 25/1 ratio to the enhancement amount in 21 U.S.C. §
841(b)(1)(B)(iii), the [threshold] enhancement quantity of crack would be 20 g of
crack. Lockett’s drug quantity of 10.414 g of crack would not qualify for the
enhancement and he would be sentenced under 21 U.S.C. § 841(b)(1)(C).
Def.’s Br. at 12 (paragraph breaks added).
Whether the disparity between guideline-recommended sentences for crack cocaine and
guideline-recommended sentences for the same weight of powder cocaine violated Equal Protection
is a legal question which we review de novo. See United States v. Lloyd, 10 F.3d 1197, 1220 (6th
Cir. 1993) (applying de novo standard to same question); United States v. Robinson, Nos. 95-5171
& 95-5172, 95 F.3d 1153, 1996 WL 490379, *11 (6th Cir. Aug. 27, 1996) (per curiam) (“Robinson’s
constitutional challenges on equal protection and Eighth Amendment grounds to the crack:powder
cocaine disparity are reviewed de novo.”); see also LRL Props. v. Portage Metro. Hsg. Auth., 55 F.3d
1097, 1104 (6th Cir. 1995) (district court’s determination that proposed Equal Protection claim
lacked merit was a legal determination subject to de novo review).
Lockett’s argument is unequivocally foreclosed by our published precedents. “This circuit
has repeatedly found that . . . section 841(b) does not violate equal protection guarantees under the
Fifth Amendment.” United States v. Wimbley, 553 F.3d 455, 463 (6th Cir.) (quoting United States
v. Hill, 79 F.3d 1477, 1488 (6th Cir. 1996) (collecting cases)), cert. denied, – U.S. –, 129 S. Ct. 2414
(2009). See also United States v. Blair, 214 F.3d 690, 702 (6th Cir. 2000); United States v.
Bingham, 81 F.3d 617, 630-31 (6th Cir. 1996) (rejecting equal-protection challenge to crack/powder
disparity); cf. United States v. Pickett, 941 F.2d 411, 418-19 (6th Cir. 1991) (rejecting Eighth
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Amendment cruel-and-unusual-punishment and substantive due process challenges to crack/powder
disparity).
This court issued the Wimbley decision in January 2009, more than a year after the Supreme
Court issued Kimbrough, yet Wimbley adhered to our pre-Kimbrough view that such an equal-
protection claim lacks merit. It quickly dispatched the defendant’s reliance on Kimbrough, stating,
Kimbrough addresses a district court’s discretion under the sentencing Guidelines,
and explicitly allows the sentencing court to take into account the Guidelines’
disparate treatment of crack versus powder cocaine. [Kimbrough, 128 S.Ct.] at 564.
But Kimbrough is inapposite here because Wimbley’s sentence was set by a statutory
mandatory minimum, not the advisory Sentencing Guidelines.
Wimbley, 553 F.3d at 462. See also United States v. Berry, 290 F. App’x 784, 793 (6th Cir. 2008)
(“We have consistently held that the crack/powder disparity withstands constitutional scrutiny,
including challenges based on due process, equal protection, and the Eighth Amendment. * * *
Kimbrough said nothing to suggest otherwise and provides no reason to reconsider our constitutional
rulings on the facts of this case.”) (citations omitted); Underwood v. Moore, No. 2:07-cv-428, 2008
WL 1775521, *7 (S.D. Ohio Apr. 17, 2008); and Smith v. United States, Civ. No. 07-11145, 2008
WL 360616, *4 (E.D. Mich. Feb. 8, 2008). Accord United States v. Carter, 91 F.3d 1196 (8th Cir.
1996) (absent a showing that Congress acted with a discriminatory purpose, the 100-to-one ratio did
not violate equal protection).
Moreover, Kimbrough itself held that when a district court is considering whether and to
what extent it may impose a sentence different from that recommended by the Guidelines because
it disagrees with the logic, fairness, or utility of the crack/powder ratio, it remains “constrained by
the mandatory minimums Congress prescribed.” Kimbrough, – U.S. at –, 128 S. Ct. at 754. In other
words, the 18 U.S.C. § 3553(a) factors do not give a district court discretion to disobey a statutory
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mandatory minimum, whether because the court disagrees with the powder/crack disparity or for
some other reason. This is merely an application of our Circuit’s general rule that “‘§ 3553(a)
factors do not apply to congressionally mandated sentences.’” United States v. Penney, 576 F.3d
297, 317 (6th Cir. 2009) (quoting United States v. Franklin, 499 F.3d 578, 585 (6th Cir. 2007)),
reh’g & reh’g en banc denied (6th Cir. Sept. 24, 2009). It is not categorically impermissible for a
district court to exercise its discretion to reduce a defendant’s offense level if it finds that the
powder/crack disparity would otherwise yield a sentence that was harsher than necessary to further
the purposes outlined in 18 U.S.C. § 3553(a).8
8
In United States v. Porter, 312 F. App’x 772 (6th Cir.), cert. denied, – U.S. –, 129 S. Ct. 2173
(2009), for example, we affirmed the district court’s discretionary decision to subtract two offense
levels where the applicable 100:1 crack/powder ratio would otherwise yield a sentence which the
district court found was “greater than necessary” to satisfy the goals of § 3553(a). That decision was
only permissible, however, because the ultimate sentence meted out was not below the statutory
mandatory minimum. The original offense level yielded a guideline-recommended imprisonment
range of 168-210 months, the subtraction of two levels yielded a guideline range of 140-175 months,
and the district court imposed 144 months – above the statutory mandatory minimum of 120 months.
See Porter, 312 F. App’x at 773-775.
So long as the ultimate sentence imposed is equal to or longer than any applicable statutory
mandatory minimum, “district courts are entitled to reject and vary categorically from the crack-
cocaine guidelines based on a policy disagreement with those guidelines.” Spears v. United States,
555 U.S. –, 129 S. Ct. 840, 844 (2009) (per curiam). See, e.g., United States v. Wynn, 579 F.3d 567,
577 (6th Cir. 2009) (“[B]ecause Wynn’s conviction involves crack cocaine, the district court should
consider” whether to exercise the discretion recognized by Spears), reh’g denied (6th Cir. Nov. 4,
2009); Johnson v. United States, 553 F.3d 990 (6th Cir. 2009) (vacating and remanding for
resentencing where the record of defendant’s pre-Spears sentencing did not display the district
court’s awareness of its discretion in this regard); United States v. Johnson, 308 F. App’x 968, 977
(6th Cir. 2009) (in light of Supreme Court decisions in Spears and Kimbrough, “it was procedurally
unreasonable for the district judge to sentence defendant under the erroneous belief that he was
without authority to consider the 100:1 disparity in treatment of offenses involving crack and powder
cocaine.”).
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VIII.
In his reply brief, Lockett makes an argument, or a number of overlapping arguments, which
seem to relate to both his second assignment of error (calculation of guideline range under career-
offender guideline) and his third assignment of error (disparity between crack-cocaine guidelines and
powder-cocaine guidelines violate Equal Protection even under rational-basis test). Namely, Lockett
asserts, with no quotation of authority or even citation to any particular page in any decision, that
[w]hile the Court did use the enhanced career offender Guidelines as a starting point
for determining the sentence of Lockett, Gall v. United States, 128 S. Ct. 586, [sic,
no page number after comma] (2007), it failed to consider whether the Guidelines as
calculated indicated a sentence that was greater than necessary to serve the objectives
of 18 U.S.C. § 3553(a) after considering all factors raised by Lockett.
The Court seemed to believe it had no choice to deviate from the career offender
Guideline calculation. (R 35, Transcript of Proceedings: Sentencing, pg 6-8). The
career offender Guideline calculation is just that; a guideline that the Court is free to
deviate from when considering the objectives of 18 U.S.C. § 3553(a). The Court is
free to consider the disparity between the guidelines treatment of crack and powder
offenses when determining the objectives of 18 U.S.C. § 3553(a), Kimbrough, supra
[sic, no citation to a page]. Lockett asked the Court to consider the disparity between
crack and powder (R2, Sentencing Memorandum, pg 2-3) but it made no findings to
indicate it considered Lockett’s request to support its sentencing determination.
Def.’s Reply Br at 3-4 (paragraph break added).
These arguments were not made in Lockett’s opening brief on appeal, so they are waived.
See American Trim, LLC v. Oracle Corp., 383 F.3d 462, 477 (6th Cir. 2004) (“Oracle argues that
the punitive damages award is unconstitutionally excessive . . . . This argument was raised for the
first time in Oracle’s reply brief, and this court has consistently held that we will not consider such
arguments.”) (citing Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir.
2004)); United States v. Mellies, 329 F. App’x 592, 605 (6th Cir. 2009) (citing with approval United
States v. Still, 102 F.3d 118, 122 n.7 (5th Cir. 1996) (“declining to address the defendant’s challenge
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to all six counts on which he was convicted because it was asserted for the first time in his reply brief
and ‘an appellant abandons all issues not raised and argued in its initial brief on appeal’”)).
Moreover, Lockett’s failure to cite any specific authority for his assertions in the above
passage is another ground for refusing to entertain those assertions. See In re Mitan, 573 F.3d 237,
248 n.5 (6th Cir. 2009) (“The creditors provide no citation to authority or argument to support their
last-sentence request. The creditors consequently have waived the issue.”) (citing Grinter v. Knight,
532 F.3d 567, 574 n.4 (6th Cir. 2008)); Mellies, 329 F. App’x at – (citing with approval United
States v. Alonso, 48 F.3d 1536, 1544 (9th Cir. 1995) (“refusing to address the appellant’s
‘unsupported’ and ‘[un]developed’ arguments which contained no citations to authority because they
violated the Federal Rules of Appellate Procedure”)); United States v. Robson, 307 F. App’x 907,
912 (6th Cir. 2009) (“Robson cites no authority for this approach, and we are aware of none.
Accordingly, we dismiss these undeveloped . . . claims.”).
IX.
For the foregoing reasons, we AFFIRM Lockett’s sentence.
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