United States v. Taylor , 301 F. App'x 508 ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0725n.06
Filed: November 24, 2008
Nos. 07-1886, 07-1888
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
United States of America, )
)
Plaintiff-Appellee/ ) ON APPEAL FROM THE
Cross-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF MICHIGAN
)
Marious Delano Taylor, )
)
Defendant-Appellant/ )
Cross-Appellee )
BEFORE: MOORE and COLE, Circuit Judges, and GRAHAM, District
Judge.*
GRAHAM, District Judge. This is an appeal brought from a
judgment of conviction and sentence entered in the United States
District Court for the Western District of Michigan. Defendant-
Appellant/Cross-Appellee Marious Delano Taylor (“the defendant”)
was convicted of one count of possession of a firearm by a
convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). He appeals the ruling of the district court denying his
motion to suppress evidence obtained from his residence pursuant to
a search warrant. The government filed a cross-appeal challenging
the district court’s decision that the defendant did not meet the
criteria for an enhanced sentence under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e). For the following reasons, the
district court’s denial of the motion to suppress is AFFIRMED, the
*
The Honorable James L. Graham, United States District Judge for the
Southern District of Ohio, sitting by designation.
district court’s ruling that the defendant did not qualify for an
enhanced sentence under the ACCA is REVERSED, and the case is
remanded for re-sentencing.
I. History of the Case
On August 31, 2006, officers of the Grand Rapids Police
Department obtained a search warrant issued by a state court judge
to search the defendant’s residence at 524 Coit Avenue N.E., Grand
Rapids, Michigan. In the affidavit submitted in support of the
warrant application, Officer Maureen O’Brien of the Grand Rapids
Police Department, as the affiant, provided information obtained
from a confidential informant concerning the sale of cocaine at
that address. During the execution of the warrant, officers found
approximately 11 grams of crack cocaine, a digital scale, $400 in
a sock, and a loaded .32 caliber handgun.
On December 5, 2006, an indictment was returned charging
defendant with one count of possession of a firearm by a convicted
felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Defendant was arraigned on December 15, 2006, and entered a not
guilty plea. Defendant was re-arraigned on the charge when it
became apparent that he had three prior felony convictions which
might qualify him for career offender penalties.
On January 26, 2007, defendant filed a motion to suppress
evidence seized pursuant to the search warrant, alleging that the
search warrant affidavit was insufficient to show probable cause.
Defendant also asserted that the affidavit contained false
statements warranting an evidentiary hearing under Franks v.
Delaware, 438 U.S. 154 (1978). In an opinion and order filed on
February 22, 2007, the district court denied the motion to suppress
2
and denied defendant’s request for a Franks hearing. Defendant
then entered into a plea agreement with the government, retaining
his right to appeal the ruling on the motion to suppress. On March
1, 2007, defendant entered a plea of guilty to the indictment.
In paragraph 44 of the presentence investigation report, the
probation officer determined that defendant was an armed career
criminal subject to an enhanced sentence under the United States
Sentencing Guidelines (“U.S.S.G.”) § 4B1.4(b)(3)(A), based on his
previous convictions for two violent felony offenses, specifically:
(1) a 1995 conviction for assault with intent to commit a felony
(defendant was seventeen years old at the time of the offense, but
was prosecuted as an adult); and (2) a 2002 conviction for
felonious assault; and a previous conviction for a serious drug
offense, specifically: a 2002 conviction for the attempted delivery
of less than 50 grams of cocaine with a second offense notice.
This determination resulted in a guideline sentencing range of 188
to 235 months.
In a sentencing memorandum filed on June 21, 2007, defendant
objected to his designation as a career offender. He argued that
the 2002 attempted delivery offense was not a “serious drug
offense” as defined in 18 U.S.C. § 924(e)(2)(A)(ii) because that
definition does not specifically include attempt offenses. He also
argued that the 2002 attempt offense did not qualify because that
offense carried a maximum of ten years only by reason of the second
offense enhancement provision. He further contended that the 2002
attempt conviction and the 2002 felonious assault conviction could
not be counted as separate offenses because they were consolidated
for purposes of sentencing. Finally, he argued that the 1995
3
assault conviction should not be counted because, if the charge had
been resolved in a juvenile delinquency proceeding, as permitted
under Michigan law, rather than in the adult prosecution which
actually occurred, the conviction would not qualify under the ACCA
because no dangerous weapon was involved in the offense.
At the sentencing hearing held on June 28, 2007, the district
court agreed with the defendant’s argument that attempt offenses do
not fall within the ACCA’s definition of “serious drug offense” and
concluded that the ACCA enhancement was not applicable. In light
of this ruling, the district court did not specifically address
defendant’s argument that the second offense enhancement which
raised the 2002 drug conviction to an offense with a maximum term
of imprisonment of ten years should not be considered. However,
the district court did summarily reject defendant’s arguments that
the two convictions in 2002 which were consolidated for purposes of
sentencing should be treated as a single conviction, and that his
1995 conviction for an offense committed while a juvenile should
not be counted.
As a result of the court’s ruling that the ACCA did not apply,
the defendant’s sentencing range under the advisory guidelines was
determined to be 110 to 120 months, based on a total offense level
25 and a criminal history category VI. Defendant was sentenced to
a term of incarceration of 120 months, to be served concurrently
with a state court sentence defendant was then serving, and was
further sentenced to a term of supervised release of three years
and a fine of $1,500.
II. Motion to Suppress Search
A. Validity of the Search Warrant
4
Defendant appeals the district court’s ruling denying his
motion to suppress evidence obtained during the search of his
residence. The district court’s factual findings on a motion to
suppress are reviewed for clear error and its legal determinations
are reviewed de novo. United States v. Martin, 526 F.3d 926, 936
(6th Cir. 2008). A finding of probable cause is a legal conclusion
that is also reviewed de novo. Id.
“Probable cause is described as a fair probability–not an
absolute certainty–that evidence of a crime will be found at the
location.” Id., citing Illinois v. Gates, 462 U.S. 213, 238
(1983). This court must review the totality of the circumstances
“to make a practical, commonsense,” not hyper-technical,
determination of whether probable cause is present. Gates, 462
U.S. at 238. Thus, “the duty of a reviewing court is simply to
ensure that the magistrate had a substantial basis for concluding
that probable cause existed.” Id. at 238-39.
In her affidavit of August 31, 2006, Officer O’Brien, a police
officer of thirteen years who had been assigned to the Vice Unit
for the previous eleven years, described her experience with drug
cases. JA 23-24. The affidavit further states:
In this regard your affiant met with a reliable and
credible informant 1523 who indicated from personal
knowledge that cocaine could be purchased at the above
described premises. This informant from personal
knowledge is familiar with the characteristics of
cocaine, [and] the manner in which cocaine is used and
sold in the community. When your affiant met with the
informant, the informant directed your affiant to the
above described premise[s]. The informant had been at
the above described premises within the last 48 hours and
observed a quantity of cocaine being sold there. The
cocaine as described by the informant is being sold for
various amounts of US currency.
5
The cocaine is easily concealed on or about the person.
When the informant left the premise[s], there were
additional amounts of cocaine on the premises being
offered for sale. The person(s) selling the cocaine
is/are described as: B/M, Marious Taylor, 5'9"/165, 4-25-
78.
Your affiant has known the informant one month. The
informant has made 4 controlled purchases of controlled
substances. All of these controlled purchases tested
positive for the controlled substance that was purchased.
The informant has supplied information on 5 drug
traffickers in the community said information having been
verified by your affiant through police records, personal
observations, other police officers, and other reliable
informants.
JA 24.
Defendant argued in his motion to suppress that the
information provided by the informant was not corroborated, and
therefore the reliability of the informant was not established.
The district court rejected defendant’s arguments, holding that the
issuing judge had the information necessary to consider the
confidential informant’s veracity, reliability and basis of
knowledge.
The totality of the circumstances approach requires an
assessment of the adequacy of all the circumstances set forth in
the affidavit, including the veracity and basis of knowledge of a
confidential informant. Gates, 462 U.S. at 238. The affidavit
“need not reflect the direct personal observations of a law
enforcement official and may be based on a confidential informant’s
hearsay, so long as the issuing judicial officer is reasonably
assured that the informant was credible and the information
reliable.” United States v. Williams, 224 F.3d 530, 532 (6th Cir.
2000)(citing United States v. Ventresca, 380 U.S. 102, 108 (1965)).
6
Corroboration of an informant’s tip through the officer’s
independent investigative work can be a critical factor in some
cases in determining whether an affidavit based on a confidential
informant’s tip provides a substantial basis for finding probable
cause, such as where the affidavit is merely a boilerplate form.
See United States v. Weaver, 99 F.3d 1372, 1377 (6th Cir. 1996).
However, “an affidavit is not insufficient merely because ... every
statement is not corroborated.” Martin, 526 F.3d at 936-37 (noting
that Weaver “was never intended to set a stricter standard than
that established in Gates”); see also United States v. McCraven,
401 F.3d 693, 698 (6th Cir. 2005)(independent corroboration of an
informant’s story is not necessary to a determination of probable
cause). The information substantiating an informant’s reliability
need not be obtained from a source unrelated to the confidential
informant, such as an independent police investigation or a second
confidential informant, “but may be any set of facts that support
the accuracy of the information supplied by the informant.” United
States v. May, 399 F.3d 817, 824 (6th Cir. 2005); see also McCraven,
401 F.3d at 697 (“[W]hile an affidavit must state facts supporting
an independent judicial determination that the informant is
reliable, those facts need not take any particular form.”).
Sixth Circuit precedent “clearly establishes that the affiant
need only specify that the confidential informant has given
accurate information in the past to qualify as reliable.” United
States v. Greene, 250 F.3d 471, 480 (6th Cir. 2001); see United
States v. Allen, 211 F.3d 970, 976 (6th Cir. 2000)(en banc)(noting
that affiant could attest “with some detail” that the informant
provided reliable information in the past); United States v. Smith,
7
182 F.3d 473, 483 (6th Cir. 1999)(“[I]f the prior track record of
an informant adequately substantiates his credibility, other
indicia of reliability are not necessarily required.”).
Here, the affidavit stated that Officer O’Brien had known the
informant for one month. Although the informant was not named in
the affidavit, this was not required to establish the informant’s
reliability. The informant was not an anonymous source whose
statements required independent corroboration, but rather was a
person known to the affiant officer. See May, 399 F.3d at 825 (“A
person known to the affiant officer, even though not named in the
affidavit, is not ‘an anonymous informant’ in the sense referred to
in cases where the identity of the informant is known to no one.”).
Since the informant’s identity was known to Officer O’Brien and the
informant would be subject to prosecution for making a false
report, the informant’s statements “are thus entitled to far
greater weight than those of an anonymous source.” Id. at 824-25.
Officer O’Brien further stated in the affidavit that the
informant had made four controlled purchases of controlled
substances, all of which tested positive for the controlled
substance purchased. Officer O’Brien also stated that the
informant had supplied information on five drug traffickers in the
community, “said information having been verified by your affiant
through police records, personal observations, other police
officers, and other reliable informants.” JA 24. These statements
are sufficient to establish the reliability of the informant. See
Martin, 526 F.3d at 937 (statement in affidavit that confidential
informant was a known person who previously provided information
that resulted in seizure of illegal controlled substances was
8
sufficient to establish the informant’s reliability); May, 399 F.3d
at 826 (noting that affidavit which stated only that the
“cooperating source has provided assistance in unrelated drug
investigation cases” was sufficient); Greene, 250 F.3d at 480
(holding that “the affiant need only specify that the confidential
informant has given accurate information in the past to qualify as
reliable”).
In addition, the fact that the police had utilized the
informant in four controlled purchases further indicates the
credibility and reliability of the informant, since the police
would not have continued to utilize the informant if the informant
was not credible and reliable. See United States v. Fowler, 535
F.3d 408, 414 (6th Cir. 2008). The fact that Officer O’Brien was
able to verify the informant’s information concerning five other
drug traffickers by other means provides a further basis for the
reliability of the informant’s information. See id. There is
sufficient information in the affidavit to permit the issuing judge
to determine the reliability and credibility of the informant.
Defendant also argues that the affidavit is insufficient to
establish that drugs would be found in the residence. In his
motion to suppress, defendant noted that there was no indication
how the informant came to be at defendant’s residence, no
information as to the form of cocaine that was being sold, the
amount sold, or the purchase price, and no indication that the
informant had purchased cocaine at the residence. However, “[t]he
affidavit is judged on the adequacy of what it does contain, not on
what it lacks, or on what a critic might say should have been
added.” Allen, 211 F.3d at 975. An affidavit “is not insufficient
9
merely because it lacks explicitness of detail[.]” Martin, 526
F.3d at 937.
In this case, the affidavit states that the informant stated
from personal knowledge that cocaine could be purchased at the
residence. The affidavit indicated that the informant, based on
personal knowledge, was familiar with the characteristics of
cocaine and the manner in which it is used and sold in the
community. The informant’s familiarity with cocaine is
corroborated by the information that the informant had made four
controlled purchases of controlled substances which had tested
positive for the controlled substance purchased.
The affidavit revealed that the informant had been in the
residence within the past forty-eight hours and had observed
cocaine being sold there for various monetary amounts. As this
court stated in United States v. Pelham, 801 F.2d 875 (6th Cir.
1986), “there could hardly be more substantial evidence of the
existence of the material sought and its relevance to a crime than
[the informant’s] direct viewing of” cocaine in defendant’s house.
Id. at 878; see also Gates, 462 U.S. at 234 (stating that an
informant’s “explicit and detailed description of alleged
wrongdoing, along with a statement that the event was observed
first-hand, entitled his tip to greater weight”). The informant
also stated that there were still additional amounts of cocaine
remaining at the residence when the informant left the premises,
thus supporting the probability that cocaine would be found during
the requested search. The facts related in the affidavit are
sufficient to establish probable cause to search the residence.
B. Denial of a Franks Hearing
10
Defendant also argues that the district court should have
granted his motion for a Franks hearing. In considering the
district court’s denial of a Franks hearing, the district court’s
factual findings are reviewed for clear error and its conclusions
of law are reviewed de novo. United States v. Graham, 275 F.3d
490, 505 (6th Cir. 2001). A defendant is entitled to a hearing to
challenge the validity of a search warrant if he “makes a
substantial preliminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the truth, was
included by the affiant in the warrant affidavit, and ... the
allegedly false statement is necessary to the finding of probable
cause.” Franks, 438 U.S. at 155-156; United States v. Atkin, 107
F.3d 1213, 1216-17 (6th Cir. 1997). If, when the statements which
were allegedly made falsely or with reckless disregard for the
truth are set to one side, “there remains sufficient content in the
warrant affidavit to support a finding of probable cause, no
hearing is required.” Franks, 438 U.S. at 171-172. The remainder
of the affidavit establishes probable cause if it “provide[s] the
magistrate judge with a basis for finding there was a fair
probability that contraband or evidence of a crime would be found
at” the stated location. Graham, 275 F.3d at 504.
Defendant submitted an affidavit with his motion to suppress,
stating that he was not present at the residence for three days
prior to the signing of the search warrant affidavit and had not
sold drugs from the premises during that time period, and that his
weight was 220 pounds, not 165 pounds. He summarily alleged that
the informant’s statements about observing cocaine sales at the
residence during the 48 hours preceding the warrant application and
11
the fact that additional quantities of cocaine were present when
the informant left the residence were false. The district court
concluded that even assuming that defendant’s statement about not
being present at the residence was true, that did not necessarily
render untrue the statement about defendant being described as the
person selling cocaine. The district court further noted that even
assuming that the informant’s statements were untrue, defendant
made no showing that Officer O’Brien knew or should have known that
the statements were false. The district court denied defendant’s
motion for a Franks hearing.
Even if it is assumed that the defendant was not at the
residence during the relevant time period, the information provided
by the informant is not necessarily false. The affidavit states
that the informant “observed a quantity of cocaine being sold
there.” JA 24. The affidavit stated that “The person(s) selling
the cocaine is/are described as: ... Marious Taylor.” Id. It does
not state that defendant was personally selling the cocaine while
the informant was at the residence, and, by referring to
“person(s)” in the plural, the statement is broad enough to support
an inference that the informant may have observed another person
selling cocaine as defendant’s agent on that occasion. Even if the
informant mistakenly or deliberately misidentified the person
selling cocaine at the residence as being the defendant and the
reference to the defendant is deleted, the information about the
informant seeing cocaine being sold at the residence remains
intact.
In addition, the district court correctly observed that the
defendant offered no explanation as to why Officer O’Brien knew or
12
should have known that the statement was false. “Warrant
affidavits carry with them ‘a presumption of validity,’ and ‘the
challenger’s attack must be more than conclusory’ and must allege
‘deliberate falsity or reckless disregard [on the part] of the
affiant, not of any nongovernmental informant.’” United States v.
Stuart, 507 F.3d 391, 398 (6th Cir. 2007)(quoting Franks, 438 U.S.
at 171 (emphasis added)). Since defendant proffered no evidence
that Officer O’Brien knew or should have known that the information
identifying defendant as a seller of cocaine at the residence was
false (assuming that it was), he was not entitled to a Franks
hearing on that issue.
C. Leon Good-Faith Exception
The government argues that even assuming that the search
warrant affidavit was deficient, the search should be upheld under
the good-faith exception to the warrant requirement announced in
United States v. Leon, 468 U.S. 897 (1984). In Leon, the Supreme
Court held that the exclusionary rule should not bar “admission of
evidence seized in reasonable, good-faith reliance on a search
warrant that is subsequently held to be defective.” Leon, 468 U.S.
at 905. The relevant question is “whether a reasonably well
trained officer would have known that the search was illegal
despite the magistrate’s authorization.” Id. at 922 n. 23.
Leon identified four situations in which an officer’s reliance
on a subsequently invalidated warrant could not be considered to be
objectively reasonable: (1) when the search warrant is issued on
the basis of an affidavit that the affiant knows, or is reckless in
not knowing, contains false information; (2) when the issuing
magistrate abandons his neutral and detached role and serves as a
13
rubber stamp for police activities; (3) when the affidavit is so
lacking in indicia of probable cause that a belief in its existence
is objectively unreasonable, or where the warrant application was
supported by nothing more than a “bare bones” affidavit; and (4)
when the warrant is so facially deficient that it cannot reasonably
be presumed to be valid. See United States v. Washington, 380 F.3d
236, 241 (6th Cir. 2004). The first two exceptions are not at issue
in this case.
The standard for determining whether an affidavit is “so
lacking in indicia of probable cause” as to render a belief in its
existence unreasonable is a less demanding showing than the
“substantial basis” threshold required to prove the existence of
probable cause in the first place. United States v. Carpenter, 360
F.3d 591, 595 (6th Cir. 2004)(en banc). “Thus, it is entirely
possible that an affidavit could be insufficient for probable cause
but sufficient for ‘good-faith’ reliance.” Washington, 380 F.3d at
241. A “bare bones” affidavit “states suspicions, or conclusions,
without providing some underlying factual circumstances regarding
veracity, reliability, and basis of knowledge.” United States v.
Van Shutters, 163 F.3d 331, 337 (6th Cir. 1998)(quoting Weaver, 99
F.3d at 1378).
The affidavit in the instant case was not a “bare bones”
affidavit. The affidavit did more than simply state suspicions, or
conclusions; it provided some underlying factual circumstances
regarding veracity, reliability, and basis of knowledge. The
affidavit included information that an informant who had personal
knowledge about the characteristics of cocaine and the manner in
which it is used and sold, and who had participated in controlled
14
purchases of controlled substances which tested positive for the
substances purchased, had personally observed cocaine being sold at
the defendant’s residence within the forty-eight hours preceding
the issuance of the warrant. The affiant also stated that there
was additional cocaine being offered for sale at the residence when
the informant departed. The facts established a nexus between the
illegal activity and the premises to be searched, and “were not so
vague as to be conclusory or meaningless.” Carpenter, 360 F.3d at
596. Since the informant had provided reliable information to the
police in the past concerning five other drug traffickers, Officer
O’Brien was justified in believing that the informant’s information
in this case was credible and reliable. The Leon good-faith
exception applies in this case.
We hold that the district court did not err in denying
defendant’s motion to suppress evidence.
III. Applicability of the Armed Career Criminal Act
A. 2002 Drug Conviction as a Qualifying Offense
The government appeals the district court’s ruling that
defendant’s previous conviction for attempted delivery of less than
50 grams of cocaine did not qualify as a “serious drug offense”
under 18 U.S.C. § 924(e)(2)(A)(ii) for purposes of imposing the
enhanced penalty under the ACCA. In the case of a defendant who is
convicted of an offense under 18 U.S.C. § 922(g), the ACCA requires
the imposition of an enhanced penalty of not less than fifteen
years incarceration where the defendant has three previous
qualifying convictions “for a violent felony or a serious drug
offense, or both, committed on occasions different from one
another[.]” 18 U.S.C. § 924(e)(1).
15
The term “serious drug offense” is defined in part as:
an offense under State law, involving manufacturing,
distributing, or possessing with intent to manufacture or
distribute, a controlled substance (as defined in section
102 of the Controlled Substances Act (21 U.S.C. 802)),
for which a maximum term of imprisonment of ten years or
more is prescribed by law[.]
18 U.S.C. § 924(e)(2)(A)(ii).
The district court agreed with the defendant’s argument that
attempt offenses in general do not fall within the ACCA’s
definition of “serious drug offense.” JA 165-67. However, it is
unnecessary to reach that issue here, because the record reveals
that defendant’s prior conviction was for an offense “involving ...
distributing ... a controlled substance.”
This court reviews de novo the district court’s decision
regarding the applicability of the ACCA. United States v. Amos,
501 F.3d 524, 526 (6th Cir. 2007). The government bears the burden
of establishing that defendant’s prior convictions qualify as ACCA
predicates. See United States v. Goodman, 519 F.3d 310, 316 (6th
Cir. 2008).
In determining whether the defendant’s prior conviction
qualifies as a predicate offense under the ACCA, “we use a
categorical approach, looking ‘only to the statutory definitions of
the prior offenses, and not to the particular facts underlying
those convictions’ to determine whether a sentence should be
enhanced.” United States v. Flores, 477 F.3d 431, 434 (6th Cir.
2007)(quoting Taylor v. United States, 495 U.S. 575, 600 (1990)).
However, in cases where the statutory definition is ambiguous and
the categorical approach is not determinative, this court may also
refer to “the terms of the charging document, the terms of a plea
16
agreement or transcript of colloquy between judge and defendant in
which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record of this
information.” Shepard v. United States, 544 U.S. 13, 26 (2005);
see also Goodman, 519 F.3d at 317; United States v. Armstead, 467
F.3d 943, 947 (6th Cir. 2006).
Defendant was originally charged by information filed on May
30, 2002, in the Circuit Court of Ottawa County, Michigan, with the
offense of delivery of less than 50 grams of cocaine in violation
of Mich. Comp. Laws § 333.7401(2)(a)(iv), an offense punishable by
imprisonment of up to 20 years. Defendant was also charged with a
second offense notice under Mich. Comp. Laws § 333.7413(2), which
had the effect of doubling the potential term of incarceration
otherwise applicable to the underlying offense to a maximum term of
40 years.
Defendant was later charged by information filed on August 5,
2002, with Count 2, the offense of attempt to deliver less than 50
grams of cocaine in violation of Mich. Comp. Laws §
333.7401(2)(a)(iv) and Mich. Comp. Laws § 750.92, the general
attempt statute. The potential term of incarceration under the
general attempt statute is a period of up to five years, doubled to
ten years in defendant’s case by the second offense notice.
At the plea proceedings on August 5, 2002, the prosecutor
indicated that Count 1 in the original information would be
dismissed, and that defendant would be pleading guilty to Count 2
and the second offense notice. The prosecutor further stated that
this offense “is a five-year felony” and that the second-offense
notice would result in a double penalty. JA 111-12. Defendant was
17
sentenced to a term of imprisonment of 23 to 120 months. The
judgment referred to § 333.7401(2)(a)(iv) and § 333.7413(2).
However, it did not refer to § 750.92. Thus, there is some
ambiguity in the record as to the exact statutory basis of
defendant’s conviction.
Considering first the relevant drug provisions, Michigan law
provides that “a person shall not ... deliver ... a controlled
substance[.]” Mich. Comp. Laws § 333.7401(1). Section
333.7401(2)(a)(iv) establishes the penalty for a violation of §
333.7401(1) where the offense involved a Schedule 1 or 2 controlled
substance in an amount less than fifty grams, which includes a term
of incarceration of up to twenty years. As used in § 333.7401(1),
the term “deliver” or “delivery” means “the actual, constructive,
or attempted transfer from 1 person to another of a controlled
substance[.]”1 Mich. Comp. Laws § 333.7105(1). Since the
definition of “deliver” includes “attempted transfer,” Michigan
courts have held that under § 333.7401, there is no such offense as
“attempted delivery” of a controlled substance; any attempt is
subsumed under the crime of delivery itself. See People v. Marji,
447 N.W.2d 835, 838 (Mich.Ct.App. 1989); Wayne County Prosecutor v.
Detroit Recorder’s Court Judge, 442 N.W.2d 771, 773 (Mich.Ct.App.
1989); People v. Wright, 253 N.W.2d 739, 740-41 (Mich.Ct.App.
1977). Thus, if § 333.7401 is considered to be the statutory
provision underlying defendant’s attempt conviction, then that
1
This definition is similar to definitions found in the
federal drug laws. “The term ‘distribute’ means to deliver ... a
controlled substance[.]” 21 U.S.C. § 802(11). “The terms
‘deliver’ or ‘delivery’ mean the actual, constructive, or attempted
transfer of a controlled substance[.]” 21 U.S.C. §802(8).
18
conviction would qualify as a delivery offense by definition under
Michigan law, and would also constitute an offense “involving ...
distributing ... a controlled substance” under the ACCA.
However, the charging document also refers to § 750.92.2 This
statute creates a distinct substantive offense. People v.
Thousand, 631 N.W.2d 694, 702 (2001). The elements of the general
attempt offense under § 750.92 are: (1) an attempt to commit an
offense prohibited by law, and (2) any act towards the commission
of the intended offense. Id. at 701.
Assuming arguendo that defendant’s conviction was for an
offense under § 750.92, that general provision is arguably broad
enough to encompass “some offenses that meet the ACCA’s definition
of” a “serious drug offense” and “some that do not[.]” See United
States v. Hargrove, 416 F.3d 486, 494 (6th Cir. 2005). In such
circumstances, we may consider the “transcript of plea colloquy,
and any explicit factual finding by the trial judge to which the
defendant assented.” Shepard, 544 U.S. at 16.
The record in this case, JA at 125-126, contains a transcript
2
Section 750.92 applies only “when no express provision is
made by law for the punishment of such attempt.” § 750.92; Wayne
County Prosecutor, 442 N.W.2d at 772. Because § 333.7401(2)(a)(iv)
specifically provides a different punishment for an attempted
delivery of a controlled substance, the general attempt statute is
technically inapplicable to an offense under that section. See
Wright, 253 N.W.2d at 741 (rejecting § 750.92 as a basis for
instructing the jury on attempted delivery of heroin as a lesser
included offense); see also Mich. Comp. Laws § 333.7407a (an
attempt to violate the drug laws is punishable by the penalty for
the crime which the defendant attempted to commit). It is possible
that the prosecution offered a plea agreement under the general
attempt statute, even if erroneously, because defendant was only
willing to plead guilty to an offense which entailed a lower
penalty than the original charge.
19
of the plea proceedings which includes the following exchange:
THE COURT: Tell me the facts that make you guilty.
THE DEFENDANT: Well, this lady came to the house and–
THE COURT: Did you sell her some cocaine?
THE DEFENDANT; Yes, I did.
THE COURT: And whose house was it?
THE DEFENDANT: It wasn’t at a residence. It’s like she
came to the house, and my girlfriend’s mother was at the
house, so I told her to meet me down the street. And
it–so it was on 16th Street, at some little store, where
you buy beer and stuff.
THE COURT: Did this delivery of cocaine to this other
person take place in the City of Holland on or about June
14 of 1999?
THE DEFENDANT: Yeah. I’m not sure exactly.3
* * *
THE COURT: Mr. Taylor, the Court determines your plea is
voluntarily made, that the crime was committed, that you
did commit the crime, [and] therefore, accepts your plea
of guilty.
In this exchange, defendant admitted to actually delivering
cocaine. The plea colloquy establishes that the offense of
conviction was an offense “involving ... distributing ... a
controlled substance” under the ACCA.
Defendant also argued before the district court, and now
argues on appeal, that his 2002 drug conviction was not a “serious
drug offence” because it was not an offense “for which a maximum
3
Presumably the defendant’s uncertainty related to the date
or location of the transaction; he did not object in any way to the
court’s characterization of the transaction as a delivery.
20
term of imprisonment of ten years or more is prescribed by law[.]”
18 U.S.C. § 924(e)(2)(A)(ii). As previously stated, defendant
entered a guilty plea to Count 2, which charged him with a
violation of § 333.7401(2)(a)(iv) and § 750.92, the general attempt
statute, under which the maximum penalty was five years
incarceration. However, the defendant also pleaded guilty to the
second offense notice, which rendered him subject to an enhanced
penalty of ten years pursuant to § 333.7413(2). He was sentenced
on September 3, 2002, to a term of imprisonment of 23 to 120
months.
Defendant argues that the enhancement provision, which
elevated his maximum sentence from five years to ten years due to
a prior conviction, should not be considered for purposes of
meeting the ten-year threshold under the ACCA. This argument is
foreclosed by the recent decision of the Supreme Court in United
States v. Rodriquez, 128 S. Ct. 1783 (2008). In Rodriquez, the
Supreme Court held that the “maximum term of imprisonment of ten
years or more ... prescribed by law” referred to in §
924(e)(2)(A)(ii) included any recidivist enhancements provided for
under state law. Id. at 1787-93. The Court noted that “an offense
committed by a repeat offender is often thought to reflect greater
culpability and thus to merit greater punishment” and “portends
greater future danger and therefore warrants an increased sentence
for purposes of deterrence and incapacitation.” Id. at 1789. The
Court rejected the argument that offenses that are not really
serious will be included as “serious drug offenses,” noting that
since Congress presumably thought that if state lawmakers provide
for a crime punishable by ten years’ imprisonment, “the lawmakers
21
must regard the crime as ‘serious,’ and Congress chose to defer to
the state lawmakers’ judgment.” Id. at 1790. The Court held that
the “maximum term of imprisonment ... prescribed by law” for the
state drug convictions “was the 10-year maximum set by the
applicable recidivist provision.” Id. at 1793.
Defendant’s previous conviction for an offense involving
distributing a controlled substance, enhanced by his prior
conviction to a maximum term of incarceration of ten years,
satisfies the definition of “serious drug offense” under the ACCA.4
The district court erred in holding that defendant’s prior drug
conviction did not qualify as a “serious drug offense” and this
case must be remanded for re-sentencing. The defendant raised
other objections before the trial court concerning his status under
the ACCA which would presumably be repeated upon re-sentencing.
These objections have been briefed by the parties on appeal, and in
the interest of judicial economy, we will address these issues as
well.
B. Prior Convictions on Different Occasions
In order to constitute “three previous convictions,” the
offenses must be “committed on occasions different from one
another[.]” 18 U.S.C. § 924(e)(1). Defendant argues that the 2002
drug conviction and the 2002 felonious assault conviction cannot be
counted as two separate convictions because they were consolidated
4
The government also argues that defendant should have been
charged under the more specific attempt provision applicable to
drug offenses found in Mich. Comp. Laws § 333.7407a, which provides
that an attempt is punishable by the penalty for the crime which
the defendant attempted to commit. However, since the enhanced
penalty which the defendant actually received as a recidivist
satisfies the ACCA, it is not necessary to address this argument.
22
for purposes of sentencing. The information in the drug case
charges that defendant committed the offense on or about June 14,
1999. The transcript of the plea proceeding reveals that the
felonious assault charge stemmed from defendant assaulting two
victims with a knife on November 12, 2001. Offenses are considered
distinct criminal episodes if they “occurred on occasions different
from one another.” Martin, 526 F.3d at 939 (quoting United States
v. Roach, 958 F.2d 679, 684 (6th Cir. 1992)). Here, the offenses
occurred on different occasions.
The fact that these two offenses were consolidated for
sentencing purposes does not undermine their status as separate
convictions under the ACCA. As this court has noted, § 924(e)(1)
“imposes no conditions as to the timing of the convictions.”
United States v. Hayes, 951 F.2d 707, 709 (6th Cir. 1991)(when it
is clear that the defendant’s prior convictions involved separate
criminal episodes, § 924(e)(1) does not require the convictions to
have been adjudicated separately). “The relevant factor for
determining the number of predicate offenses under the ACCA is not
the date of conviction for those predicate offenses, but the date
that the defendant committed the offense for which he is
subsequently convicted.” Roach, 958 F.2d at 683. The fact that
the offenses were consolidated for sentencing or for concurrent
sentences is immaterial for ACCA enhancement purposes, so long as
the separate offenses occurred at different times and/or places.
Martin, 526 F.3d at 939 (citing United States v. Warren, 973 F.2d
1304, 1310 (6th Cir. 1992)).
Defendant argues that the standard in the Sentencing
Guidelines for computing a defendant’s criminal history category
23
should also be applied in determining whether there are three
separate convictions under the ACCA. Under recently amended
U.S.S.G. § 4A1.2(a)(2)(2007), sentences are classified as separate
if they were imposed for crimes that were separated by an
intervening arrest. This argument was recently rejected in United
States v. Bailey, 264 Fed. App’x 480, 483-84 (6th Cir. Feb. 14,
2008)(declining to apply the methods for calculating criminal
history under the Guidelines in determining whether offenses are
distinct under the ACCA, and noting that the Sentencing Commission
cannot alter a statute such as the ACCA by changing the
Guidelines). See also James v. United States, 217 Fed. App’x 431,
440-41 (6th Cir. Feb. 12, 2007)(rejecting argument that lack of
intervening arrest mandated finding that offenses were not
committed on different occasions); United States v. Brady, 988 F.2d
664, 666 (6th Cir. 1993)(en banc)(finding that offenses were
committed on different occasions even though defendant was not
arrested between the two offenses); Warren, 973 F.2d at 1310
(consolidation of offenses for sentencing immaterial under the
ACCA, even though such consolidation could be relevant under the
Sentencing Guidelines).
The district court did not err in rejecting defendant’s
argument that the 2002 convictions were not for separate offenses.
D. 1995 Assault Conviction
Defendant argues that his 1995 assault conviction does not
constitute a “violent felony” under the ACCA. The term “violent
felony” means “any crime punishable by imprisonment for a term
exceeding one year, or any act of juvenile delinquency involving
the use or carrying of a firearm, knife, or destructive device that
24
would be punishable by imprisonment for such term if committed by
an adult,” where the offense “has as an element the use, attempted
use, or threatened use of physical force against the person of
another[.]” 18 U.S.C. § 924(e)(2)(B)(i).
Defendant does not dispute that he was charged as an adult
with unarmed assault with intent to rob in violation of Mich. Comp.
Laws § 750.87, a felony with a maximum term of imprisonment of ten
years, nor does he dispute that he was sentenced as an adult to
eight months incarceration. Rather, defendant argues that since
his charge could have been resolved as a juvenile proceeding under
Mich. Comp. Laws § 712A.2d,5 his conviction was akin to a juvenile
delinquency determination, which would require the use of a weapon
to qualify as an ACCA predicate offense.
Regardless of whether defendant could have been prosecuted as
a juvenile, he was in fact tried, convicted, and sentenced as an
adult. The definition of “violent felony” is in the disjunctive,
requiring either that the crime be punishable by imprisonment for
a term exceeding one year, or that it be a juvenile delinquency
charge involving the use of a firearm, knife or destructive device.
Since defendant was convicted and sentenced as an adult for a crime
punishable by imprisonment for a term exceeding one year, this
conviction qualifies as a conviction for purposes of the ACCA
enhancement. See United States v. Spears, 443 F.3d 1358, 1360-61
5
Mich. Comp. Laws § 712A.2d(7) provides that where the
juvenile defendant is tried as an adult, the “conviction shall have
the same effect and liabilities as if it had been obtained in a
court of general criminal jurisdiction.” Following a judgment of
conviction, the judge may impose a juvenile disposition, an adult
sentence, or a blended sentence. Mich. Comp. Laws §§ 712A.2d(8)
and 712A.18(1)(n).
25
(11th Cir. 2006)(rejecting defendant’s argument that proof of use
of one of the specified weapons was required because he was
seventeen years old when he committed the offense, where defendant
was tried and convicted as an adult); United States v. Lender 985
F.2d 151, 156 (4th Cir. 1993)(“[I]f the state prosecutes an
individual as an adult, as it did here, the first part of the
‘violent felony’ definition applies; if the state prosecutes as a
juvenile, then the second part applies.”). As the court in Lender
noted, Congress has chosen to incorporate state law, “letting
states decide at what point adult treatment for a particular
offense is indicated[,]” and “the prosecuting jurisdiction’s
determination of whether an individual is prosecuted as a juvenile
or an adult must be respected by later sentencing courts.” 985
F.2d at 156-57.
Because the State of Michigan determined that defendant should
be tried and sentenced as an adult for an offense punishable by
imprisonment for a term exceeding one year, defendant’s 1995
conviction satisfies the definition of “violent felony” even though
defendant could have been tried as a juvenile.
IV. Conclusion
In accordance with the foregoing, the district court’s ruling
on the motion to suppress evidence is AFFIRMED. Since the record
establishes that defendant, at the time of sentencing, had three
previous convictions which qualified as predicate offenses under
the ACCA, the district court erred in refusing to sentence
defendant as an armed career criminal. The sentence previously
imposed is VACATED, and the case is REMANDED for re-sentencing in
accordance with the ACCA.
26