NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
Submitted September 27, 2011*
Decided December 8, 2011
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
UNITED STATES OF AMERICA, ]
]
Appeal from the United States District
Plaintiff‐Appellee, ]
Court for the Southern District of Illinois.
]
No. 11‐2111 ] No. 04 CR 30029-3
]
v. ] David R. Herndon, Chief Judge.
]
QUAWNTAY ADAMS, ]
]
Defendant‐Appellant. ]
ORDER
Quawntay Adams was convicted of possessing in excess of 100 kilograms of
marijuana with the intent to distribute, see 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii),
conspiring to commit money laundering, see 18 U.S.C. § 1956(a)(1)(A)(i) and (h), and
escaping and attempting to escape from custody, see 18 U.S.C. § 751(a). The district
court ordered Adams to serve a term of 420 months in prison. In a prior appeal, we
*
This successive appeal has been submitted to the original panel under Operating
Procedure 6(b). After examining the briefs and the record, we have concluded that
oral argument is unnecessary. The appeal is therefore submitted on the briefs and
record. See Fed. R.App. P. 34(a)(2).
2 No. 11-2111
found the evidence insufficient to support Adams’ conviction for conspiracy to
commit money laundering as charged in Count Three of the superseding indictment
but otherwise affirmed his convictions. We remanded the case to the district court
with instructions “to enter a judgment of acquittal on Count Three of the third
superseding indictment and for resentencing in light of that acquittal.” United States
v. Adams, 625 F.3d 371, 386 (7th Cir. 2010).
On remand, the district court convened a resentencing hearing. As it turned
out, the acquittal on the money laundering charge had no effect on Adams’
sentencing range. Although it had the nominal, initial effect of lowering Adams’
offense level from 32 to 30, Adams’ status as a career offender once again boosted the
final offense level to 37 and, coupled with his criminal history, yielded a sentencing
range of 360 months to life, just as it did at Adams’ original sentencing. See U.S.S.G.
§ 4B1.1. The district court rejected Adams’ belated contention that one of his prior
convictions did not qualify as a controlled substance offense and that he
consequently should not be treated as a career offender. After entertaining
argument from the parties as to an appropriate sentence, the district court again
sentenced Adams to a prison term of 420 months.
In this successive appeal, Adams contends that the record does not support
the district court’s finding that he qualifies as a career offender. Adams’ criminal
history includes two prior convictions which together render him a career offender: a
1993 conviction for assault on a peace officer with a deadly weapon other than a
firearm, and a 1997 conviction in California for the transport or sale of a narcotic or
other controlled substance. There is no dispute that the 1993 conviction constitutes a
crime of violence and, as such, qualifies as one of the two predicate convictions
necessary to establish Adams’ career offender status. See U.S.S.G. § 4B1.2(a).
However, Adams suggests that the 1997 California conviction does not qualify as a
controlled substance offense under the career offender guideline. See U.S.S.G.
§ 4B1.2(b). Because the statute underlying Adams’ 1997 conviction in California, Cal.
Health & Safety Code § 11352(a), criminalizes the transportation as well as the
possession and distribution of narcotics, and because the simple transportation of
narcotics would not qualify as a controlled substance offense for purposes of the
career offender guideline, § 4B1.2(b), Adams contends that his 1997 conviction may
not qualify as a controlled substance offense. He assumes that the district court, in
rejecting this contention, relied solely on the Presentence Report’s characterization of
the conviction as one for narcotics trafficking rather than transportation, and that the
court failed to consult the relevant portions of the state judicial record, including the
charging document, to determine the precise nature of the offense with which he
No. 11-2111 3
was actually charged in California. See Taylor v. United States, 495 U.S. 575, 602, 110
S. Ct. 2143, 2160 (1990) (describing modified categorical approach courts must follow
to determine nature of prior conviction when underlying offense may be committed
in several ways, one or more of which do not qualify as a predicate offense under the
sentencing guidelines). We reject this argument for the same reasons that the district
court did.
First, any argument as to the nature of Adams’ prior conviction has been
waived. Adams was sentenced as a career offender at his original sentencing, based
in part on his 1997 conviction in California. Yet, Adams made no argument in his
prior appeal as to the adequacy of that conviction or his status as a career offender
under the sentencing guidelines. Issues that could have been raised in a prior appeal
but were not are deemed waived. United States v. Barnes, Nos 11‐1261 & 11‐1602,
2011 WL 5041710, at *5 (7th Cir. Oct. 25, 2011); United States v. Swanson, 483 F.3d 509,
515 (7th Cir. 2007); United States v. Sumner, 325 F.3d 884, 891‐92 (7th Cir. 2003); United
States v. Lowell, 256 F.3d 463, 464‐65 (7th Cir. 2001). Although we did remand
Adams’ case for resentencing in light of the acquittal on the money laundering
charge, the scope of any such remand is limited in the first instance by a defendant’s
failure to raise any issues that he could have presented in his first appeal. United
States v. Husband, 312 F.3d 247, 250‐51 (7th Cir. 2002).
Second, the remand that we ordered was for the limited purpose of
resentencing “in light of” Adams’ acquittal on the money laundering charge.
Nothing about that acquittal implicated Adams’ status as a career offender.
Consequently, although the district court was charged by our mandate with
resentencing Adams, the court was not compelled to consider any matter unrelated
to the removal of the money laundering conviction from the case and the effect of
that removal (if any) on the sentencing package. This is not to say that the court’s
task was limited to a rote recalculation of Adams’ offense level with no authority to
reconsider the sentence in light of the parties’ arguments, be those arguments old or
new. Barnes, 2011 WL 5041710, at *6‐*7 (discussing Pepper v. United States, 131 S. Ct.
1229 (2011)). Rather, as we recently observed in Barnes, “when a case is generally
remanded to the district court for re‐sentencing, the district court may entertain new
arguments as necessary to effectuate its sentencing intent, but it is not obligated to
consider any new evidence or arguments beyond [those] relevant to the issues raised
on appeal.” Id. at *7 (emphasis added).
In any case, the belated challenge as to the nature of Adams’ prior conviction
fails on the merits. The felony complaint underlying Adams’ 1997 conviction, as
4 No. 11-2111
well as the judgment itself, are both in the record, having been attached to an
“Information Charging Prior Offenses” that the government filed in advance of
Adams’ trial. R. 69. The complaint, which captions the charge as “SELL/FURNISH
CONTROLLED NARCOTIC SUBSTANCE,” alleges that “[o]n or about January 24, 1996[,]
QUAWNTAY ADAMS did unlawfully sell, furnish, administer, and give away, and
offered to sell, furnish, administer, and give away controlled substances, to wit:
cocaine base, in violation of HEALTH AND SAFETY CODE SECTION 11352(a).” R. 69‐1 at
1. The complaint thus establishes that Adams was charged not with transportation
of a narcotic, but rather with the distribution and attempted distribution of a
narcotic. The district court itself pointed to the complaint’s language in rejecting
Adams’ contention. R. 529 29‐30. In short, the record makes clear that the court
complied with its obligation under Taylor to ascertain the nature of the prior offense;
and given the plain language of the felony complaint, the 1997 California conviction
was properly treated as a controlled substance offense.
For all of these reasons, we AFFIRM the sentence imposed on remand.
