United States v. Douglas Kittrells ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0366n.06
Case No. 13-4270
FILED
UNITED STATES COURT OF APPEALS May 20, 2015
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
DOUGLAS KITTRELLS, ) OHIO
)
Defendant-Appellant. )
)
BEFORE: MOORE, SUTTON, and WHITE, Circuit Judges.
SUTTON, Circuit Judge. For dealing cocaine on the streets of Cleveland, Douglas
Kittrells pleaded guilty to one count of drug conspiracy. See 21 U.S.C. § 846. This was not his
first brush with the law. Kittrells already had two Ohio drug convictions under his belt: one in
2005 for drug trafficking, leading to a year in prison, and another in 2010 for drug trafficking
and drug possession, leading to concurrent six-month terms for each. Based on those crimes, the
district court classified Kittrells as a career offender. See U.S.S.G. § 4B1.1. Even so, the court
imposed a below-guidelines sentence of 110 months.
Kittrells maintains he does not qualify as a “career offender” within the meaning of the
federal sentencing guidelines. He is wrong. Kittrells warrants that designation, the guidelines
say, if he “has at least two prior felony convictions of . . . a controlled substance offense.” Id.
Case No. 13-4270
United States v. Kittrells
§ 4B1.1(a). A prior conviction qualifies if it “count[s] separately” towards Kittrells’s criminal
history score. Id. § 4B1.2(c). Convictions count separately, in turn, if they do not share a
charging instrument, and if they do not share a sentence imposed on the same day. Id.
§ 4A1.2(a)(2). Because Kittrells’s 2005 and 2010 drug trafficking convictions share neither, he
meets the definition of a career offender under the guidelines. See United States v. Williams, 753
F.3d 626, 639 (6th Cir. 2014).
Kittrells insists his 2010 drug trafficking conviction does not qualify. Why? Because his
sentence for that crime came with an equal and concurrent sentence for simple drug possession, a
nonqualifying offense. See U.S.S.G. § 4B1.2(b). Kittrells’s logic goes like this: The guidelines
assess criminal history points for simultaneously imposed concurrent sentences based on “the
longest sentence.” Id. § 4A1.2(a)(2). There is no “longest” sentence here because both are the
same. So the trafficking conviction does not “count separately”—it contributes no points—
towards his criminal history score. As a result, Kittrells concludes, the crime does not count as a
qualifying offense for purposes of the career-offender guideline.
The problem is, we recently rejected this precise argument in Williams. Kittrells’s
reasoning, we held, confuses the method for scoring a separate criminal episode with the method
for identifying one. “Read in context,” we explained, the career-offender guideline “says
nothing” about how to treat “multiple crimes within a single predicate episode.” Williams,
753 F.3d at 639. Separating out criminal episodes for purposes of the career-offender guideline
thus has nothing to do with sentence length. Id. What’s more, Kittrells’s reading makes a hash
of the guideline because it would allow defendants to avoid career-offender status by committing
more than just the qualifying drug offense. Id. Nothing requires such an unusual result.
For these reasons, we affirm.
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