United States v. Virgil Jawan Smith

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 23, 2005
No. 05-11998
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00175-CR-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VIRGIL JAWAN SMITH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(November 23, 2005)
Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.
PER CURIAM:
Virgil J. Smith, a federal prisoner, appeals his 151-month sentence for
possession with intent to distribute a quantity of crack cocaine and cocaine
hydrochloride, in violation of 21 U.S.C. § 841(a)(1). Smith was sentenced as a
career offender, based in part on a state felony conviction for possession of a
counterfeit substance.
On appeal, Smith argues that this conviction was not a controlled substance
offense, and thus, the government did not meet its burden of proving that he had
two previous felony convictions for controlled substance offenses as described in
U.S.S.G. §§ 4B1.1 and 4B1.2, the career offender portions of the sentencing
guidelines. According to Smith, the term “counterfeit substance,” used in § 4B1.2,
must be defined through 21 U.S.C. § 802(7). Smith contends that the definition in
§ 802(7) does not include non-drug imitation substances such as the one he was
convicted of possessing. Smith’s second argument in favor of interpreting
§§ 4B1.1 & 4B1.2 through § 802(7) is that the sentencing commission lacked the
authority to include crimes that were not defined in the same manner as the United
States Code within the career offender provision.
We review de novo the interpretation and application of the sentencing
guidelines. United States v. Bracciale, 374 F.3d 998, 1003 n.5 (11th Cir. 2004).
The burden of proof for establishing that a sentence enhancement is warranted lies
with the government. United States v. Hernandez, 145 F.3d 1433, 1440 (11th Cir.
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1998). A defendant is a career offender if(1) he was at least 18 years old when
convicted of the instant offense, (2) the instant offense is “a felony that is either a
crime of violence or a controlled substance offence,” and (3) he has “at least two
prior felony convictions of either a crime of violence or a controlled substance
offense.” U.S.S.G. § 4B1.1(a). We have held that, in determining whether a state
felony is a “controlled substance offense” under § 4B1.1, we must “look at the
elements of the convicted offense, not the conduct underlying the conviction.”
United States v. Frazier, 89 F.3d 1501, 1505 (11 th Cir. 1996).
According to§ 4B1.2, a “‘controlled substance offense’ means an offense
under federal or state law, punishable by imprisonment for a term exceeding one
year, that prohibits [. . .] the possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export, distribute, or dispense.”
U.S.S.G. § 4B1.2(b). The Georgia Controlled Substances Act provides that it is
unlawful for any person to possess, sell, manufacture, or possess with intent to sell
a counterfeit substance. Ga. Code Ann. § 16-13-30(i). The Act further provides
that a person who sells a counterfeit substance is guilty of a felony punishable by
not less than one year’s imprisonment. Id.Smith was convicted of possessing a counterfeit substance with intent to sell.
This was an offense under a state law that prohibited the possession of a counterfeit
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substance, and was punishable by imprisonment for a term exceeding one year. As
such, the elements of the offense match the plain language of §§ 4B1.1 & 4B1.2.
This offense is sufficient to count towards Smith’s career offender status. See
Frazier, 89 F.3d at 1505.
This interpretation is not modified by the statutory definitions contained in
21 U.S.C. § 802(7). Section 4B1.1, background, of the sentencing guidelines states
that § 4B1.1 implements the career offender directive contained in 28 U.S.C. §
994(h). U.S.S.G. § 4B1.1, background. However, it also states that, “in accord
with its general guideline promulgation authority under 28 U.S.C. § 994(a)-(f), and
its amendment authority under 28 U.S.C. § 994(o) and (p), the Commission has
modified this definition in several respects . . . .” U.S.S.G. § 4B1.1, background.
Nothing in 28 U.S.C. § 994 prevents the sentencing commission from using its
authority in this manner. Moreover, as the Commission has expressly stated that
the definitions have been modified, it would be inappropriate to read them as
narrowly as Smith contends they should be read. Smith’s sentence is
AFFIRMED. 1
1
Smith’s request for oral argument is denied.
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