United States v. Raymond Bradley Brush ( 2023 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0205n.06
No. 22-5535
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT May 01, 2023
DEBORAH S. HUNT, Clerk
)
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF KENTUCKY
RAYMOND BRADLEY BRUSH, )
Defendant-Appellant. ) OPINION
)
)
Before: GIBBONS, THAPAR, BUSH, Circuit Judges.
JOHN K. BUSH, Circuit Judge. Raymond Brush pleaded guilty to conspiring to distribute
and distributing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 846. The presentence
investigation report (PSR) recommended an increased sentencing guidelines range of 262 to 327
months’ imprisonment because of Brush’s previous conviction for conspiring to commit arson in
Kentucky. He objected to the enhancement, but the district court overruled his objection. On
appeal, Brush challenges the district court’s determination that the enhancement statute, 21 U.S.C.
§ 841(b)(1)(B), applies to him. Because the district court correctly interpreted the statute, we
AFFIRM.
I.
Brush does not challenge the evidence or merits of his underlying methamphetamine
convictions under 21 U.S.C. §§ 841(a)(1), 846. He challenges only the sentencing enhancement.
The relevant statute for Brush’s enhanced sentence allows for increased penalties if a
defendant has a “prior conviction for a serious drug felony or a serious violent felony.” 21 U.S.C.
No. 22-5535, United States v. Brush
§ 841(b)(1)(B) (emphasis added). According to 21 U.S.C § 802(58), which provides the relevant
definitions for § 841, a “‘serious violent felony’ means an offense described in section 3559(c)(2)
of Title 18 for which the offender served a term of imprisonment of more than 12 months.” Section
3559(c)(2) of Title 18 defines “‘serious violent felony’ [to] mean[] a Federal or State offense, by
whatever designation and wherever committed, consisting of . . . extortion; arson; firearms use . . .
or attempt, conspiracy, or solicitation to commit any of the above offenses.” 18 U.S.C.
§ 3559(c)(2)(F)(i) (emphasis added).
That brings us to Brush’s previous Kentucky conviction. In 2003, Brush admitted to
paying someone to burn the home of the victim, but no one was inside the home at the time of the
arson. Based on this admission, Brush was convicted of second-degree conspiracy to commit
arson, for which he spent more than three years in prison. The PSR determined that Brush’s
conspiracy conviction qualified as a serious violent felony and calculated a total offense level of
34, after a three-point reduction for Brush accepting responsibility, and a criminal history category
of VI, creating a guidelines range of 262 months to 327 months.
When objecting to the PSR, Brush disputed neither the Kentucky conviction being a
conspiracy to commit arson charge nor that he served more than 12 months imprisonment for the
conviction. Instead, he argued that the arson conviction was disqualified from counting against
him as a serious violent felony pursuant to 18 U.S.C. § 3559(c)(3)(B). Section 3559(c)(3)(B)
defines nonqualifying arson offenses for sentencing purposes under the “three strikes” provision
of 18 U.S.C. § 3559(c)(1). The disqualifying definition explains “[a]rson shall not serve as a basis
for sentencing under this subsection if the defendant establishes by clear and convincing evidence
that the offense posed no threat to human life; and the defendant reasonably believed the offense
posed no threat to human life.” 18 U.S.C. §3559(c)(3)(B). Brush contended that, because the fire
-2-
No. 22-5535, United States v. Brush
was set to a woodpile behind an unoccupied home, the fire did not threaten human life. He also
cited United States v. Barnwell, No. 3:20-cr-623; 2021 WL 1964261 (N.D. Ohio May 17, 2021),
arguing that the § 3559(c)(3) disqualification of Barnwell’s robbery felony when being sentenced
under § 841(b)(1)(B) demonstrates that Brush’s arson conviction should be disqualified from
counting as a serious violent felony for his sentencing.
The district court disagreed. Reasoning that the plain meaning of the statute did not carve
out disqualified felonies from the definition of serious violent felonies when sentencing under §
841(b)(1)(B), the district court held that § 3559(c)(3)(B) does not apply in this case. The district
court explained that “[i]f Congress had intended the Court to consider § 3559(c)(3) in defining
‘serious violent felony’ for the purposes of § 802(58) (and § 841(b)(1)(B)), it could have explicitly
referenced § 3559(c)(3) in § 802(58).” R. 160, PageID 709. Thus, the district court sentenced
Brush to 262-months imprisonment, the bottom of the guidelines range. Brush timely appealed.
II.
We review questions regarding statutory interpretation de novo. United States v. Henry,
983 F.3d 214, 218 (6th Cir. 2020). We also review “de novo the legal conclusion that a prior
conviction is a qualifying offense under” the Controlled Substances Act (21 U.S.C. §§ 801–904).
United States v. Pritchett, 749 F.3d 417, 423 (6th Cir. 2014) (quoting United States v. Corona, 493
F. App’x 645, 653 (6th Cir. 2012)).
To begin our interpretation of a statute, “we begin with the plain meaning of the statutory
language.” Henry, 983 F.3d at 218 (quoting King v. Zamiara, 788 F.3d 207, 212 (6th Cir. 2015)).
Section 802 provides the definitions for the Controlled Substances Act—including the definition
of serious violent felonies for a sentencing enhancement under § 841. When defining serious
violent felony, § 802 specifically invokes 18 U.S.C. § 3559(c)(2). 21 U.S.C. § 802(58)(A).
-3-
No. 22-5535, United States v. Brush
Section 3559(c)(2) defines serious violent felony to include arson and conspiracy to commit arson,
along with various other crimes. Yet, the definition in § 802 conspicuously leaves out any
reference to the disqualified felonies mentioned in 18 U.S.C. §3559(c)(3).
“As judges, we assume that Congress says what it means and means what is says.” United
States v. Jackson, 995 F.3d 522, 523 (6th Cir. 2021). Because the text of § 802 makes no mention
of § 3559(c)(3) when defining serious violent felonies but does mention § 3559(c)(2), we do not
add the disqualification of felonies described in § 3559(c)(3) to the definition Congress provided
in § 802.
Even more, we “look at the specific statutory language as well as the language and design
of the statute as a whole.” Henry, 983 F.3d at 218 (quoting United States v. Meyers, 952 F.2d 914,
918 (6th Cir. 1992)). And § 3559(c)(3)’s language demonstrates that potentially disqualified
felonies should not be considered outside of sentencing for “three strikes” (§ 3559 (c)) cases, which
Brush’s case is not. As the language for disqualifying arson in certain cases says, “[a]rson shall
not serve as a basis for sentencing under this subsection . . . .” 18 U.S.C. § 3559(c)(3)(B) (emphasis
added). “This subsection” limits the provision’s impact to sentencing occurring pursuant to §
3559(c). See United States v. Gatewood, 230 F.3d 186, 188–89 (6th Cir. 2000) (en banc) (“The
three strikes statute contains a disqualification provision, or an affirmative defense, that provides
a defendant with the opportunity to prove that an otherwise qualifying conviction does not
constitute a ‘strike’ under the statute.”). But the district court sentenced Brush under the
Controlled Substances Act. To further support our view that this disqualifying language is in fact
limited to § 3559(c), § 3559(b) describes § 3559(c) as “subsection (c).” 18 U.S.C. §3559(b). That
demonstrates we should not construe the language of § 3559(c)(3) to reach beyond the limitations
the provision places on itself unless specifically instructed to do so by another statute, which is not
-4-
No. 22-5535, United States v. Brush
the circumstance here. Further, this reading of § 3559(c)(3) does not render any part of the statute
to be “inoperative or superfluous, void or insignificant” because § 3559(c)(3) still maintains its
purpose and significance in the “three strikes” context. Corley v. United States, 556 U.S. 303, 314
(2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)).
Brush’s reliance on Barnwell is misplaced. Besides not being binding on this court, that
decision determined only whether the defendant met his burden to disqualify a felony conviction
through clear and convincing evidence. Barnwell, 2021 WL 1964261, at *2. But the opinion
simply assumed—without any analysis—that § 3559(c)(3) disqualification can occur when
determining whether a serious violent felony enhancement should occur under § 841(b)(1)(B).
Here, we need not address whether Brush provided clear and convincing evidence that the
offense posed no threat to human life or if he reasonably believed the offense posed no threat to
human life in order to disqualify the prior conviction as a serious violent felony. That is because
the conviction is not eligible for disqualification, given that § 3559(c)(3) is not a part of the
definition of serious violent felony in this context. Thus, Brush’s arson conviction satisfies the
§ 3559(c)(2) definition of a serious violent felony and qualifies for a sentencing enhancement
under § 841(b)(1)(b), so we uphold the sentencing enhancement.
III.
For the foregoing reasons, we AFFIRM the district court’s sentence.
-5-