United States v. Bryshun Furlow

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4531
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRYSHUN GENARD FURLOW,
Defendant – Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Cameron McGowan Currie, Senior District Judge. (3:17-cr-00862-CMC-1)
Argued: March 21, 2019 Decided: June 27, 2019
Before WILKINSON and KING, Circuit Judges, and DUNCAN, Senior Circuit Judge.
Affirmed by published opinion. Judge King wrote the opinion, in which Judge
Wilkinson and Senior Judge Duncan joined.
ARGUED: Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Columbia, South Carolina, for Appellant. Robert Frank Daley, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee. ON BRIEF: Sherri A. Lydon, United States Attorney, Stacey D. Haynes,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.
KING, Circuit Judge:
Defendant Bryshun Genard Furlow pleaded guilty in the District of South Carolina
to a single count of possession with intent to distribute cocaine and methamphetamine,
and also to possession of a firearm and ammunition as a convicted felon. After ruling
that Furlow is an “armed career criminal” pursuant to the Armed Career Criminal Act
(the “ACCA”) and a “career offender” under the Sentencing Guidelines, the district court
sentenced him to 180 months in prison. On appeal, Furlow maintains that he does not
have the requisite number of predicate convictions for those sentencing enhancements.
More specifically, he contends that the court erred in ruling that his prior felony
convictions for distribution of crack cocaine in South Carolina and first-degree arson in
Georgia are proper predicates under the ACCA and the Guidelines career offender
provision. As explained below, we reject those contentions and affirm.
I.
A.
Furlow’s appeal concerns his designations as an “armed career criminal” under the
ACCA (codified at 18 U.S.C. § 924(e)) and as a “career offender” pursuant to section
4B1.1 of the Sentencing Guidelines (the “career offender provision”). Both the ACCA
and the career offender provision prescribe sentencing enhancements for certain federal
offenses. They differ, however, in that the ACCA is a Congressional enactment binding
2
on the federal courts, while the career offender provision is an advisory guideline
promulgated by the United States Sentencing Commission. 1
Under the ACCA, a defendant designated as an “armed career criminal” and
convicted of the federal offense of possessing a firearm or ammunition as a convicted
felon, in violation of 18 U.S.C. § 922(g)(1), is subject to a minimum sentence of fifteen
years and a maximum sentence of life in prison. See 18 U.S.C. § 924(e)(1). Absent an
ACCA enhancement, however, the section 922(g)(1) offense has no mandatory minimum
and is punishable by a maximum of ten years. See id. § 924(a)(2). A defendant is
properly designated as an armed career criminal if he has three prior “violent felony” or
“serious drug offense” convictions. See id. § 924(e)(1).
In contrast to the ACCA’s establishment of a fifteen-year mandatory minimum,
the career offender provision creates no statutory penalty. A defendant who qualifies for
an enhancement under that provision, however, may be subject to an increased
Guidelines offense level and criminal history category, which would result in an
increased advisory Guidelines range. See USSG § 4B1.1(b). A defendant is
appropriately designated as a career offender, under Guidelines section 4B1.1, if his
“instant [federal] offense of conviction” is a “crime of violence” or a “controlled
1
The Sentencing Commission is an agency within the federal judicial branch that
Congress has tasked with promulgating “guidelines . . . for use of a sentencing court in
determining the sentence to be imposed in a criminal case.” See 28 U.S.C. § 994(a)(1).
The Guidelines are published in the United States Sentencing Guidelines Manual.
3
substance offense,” and if he has two prior convictions for such offenses. See USSG
§ 4B1.1(a).
In assessing whether an offense constitutes a predicate for purposes of the ACCA
or the career offender provision, a court looks to the various definitions of qualifying
convictions contained in the ACCA and the Guidelines. As pertinent in this appeal, the
ACCA “violent felony” definition and the Guidelines “crime of violence” definition are
identical, in that they each enumerate “arson” as a qualifying predicate. See 18 U.S.C.
§ 924(e)(2)(B)(ii); USSG § 4B1.2(a)(2). The ACCA definition of a predicate “serious
drug offense” and the Guidelines definition of a predicate “controlled substance offense”
are likewise similar:
• The ACCA defines a “serious drug offense” as “an offense under
State law, involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance . . . for
which a maximum term of imprisonment of ten years or more
is prescribed by law,” see 18 U.S.C. § 924(e)(2)(A)(ii); and
• The Guidelines define a “controlled substance offense” as “an
offense under federal or state law, punishable by imprisonment for a
term exceeding one year, that prohibits the manufacture, import,
export, distribution, or dispensing of a controlled substance . . . or
the possession of a controlled substance . . . with intent to
manufacture, import, export, distribute, or dispense,” see USSG
§ 4B1.2(b).
B.
1.
In these proceedings, a grand jury in the District of South Carolina returned an
October 2017 indictment charging Furlow with six offenses, including possession with
intent to distribute cocaine and methamphetamine, in violation of 21 U.S.C. § 841(a)(1),
4
and possession of a firearm and ammunition as a convicted felon, in violation of 18
U.S.C. § 922(g)(1). Furlow thereafter moved the district court for a pretrial
determination as to whether — if found guilty of certain charges in the indictment — he
would be designated as an armed career criminal under the ACCA, a career offender
under the Guidelines, or both.
In response to Furlow’s pretrial request, the government filed an information
alleging certain of his prior felony convictions. The information specified that Furlow
had been convicted in Georgia for the felony offenses of possession with intent to
distribute cocaine and possession with intent to distribute marijuana in 2003, and two
counts of first-degree arson in 2008. The information further alleged that Furlow had
been convicted in South Carolina for felony distribution of crack cocaine in 2016.
In March 2018, the district court conducted a pretrial conference and informed
Furlow that it had preliminarily determined that he was “most likely” an armed career
criminal and a career offender. See J.A. 101. 2 About a month later, Furlow pleaded
guilty to two offenses: possession with intent to distribute cocaine and
methamphetamine, and possession of a firearm and ammunition as a convicted felon.
Following Furlow’s guilty pleas, the probation officer prepared a presentence report (the
“PSR”) recommending that the court designate Furlow as an armed career criminal. This
recommendation was based on Furlow’s two Georgia drug convictions (which the PSR
2
Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by
the parties in this appeal.
5
counted as a single ACCA predicate), his two Georgia first-degree arson convictions
(which the PSR also counted as a single predicate), and his South Carolina distribution of
crack cocaine conviction. 3 The PSR also suggested that the court apply the career
offender provision because Furlow had pleaded guilty in these proceedings to a
“controlled substance offense” (that is, possession with intent to distribute cocaine and
methamphetamine) and had been previously convicted of arson and distribution of crack
cocaine.
2.
At the July 2018 sentencing hearing in Columbia, Furlow objected to the PSR’s
armed career criminal and career offender classifications. Insofar as the PSR counted his
Georgia arson convictions as a predicate for the ACCA and the career offender provision,
Furlow asserted that the term “arson” — as used in the ACCA definition of “violent
felony” and in the Guidelines definition of “crime of violence” — is unconstitutionally
vague. For that reason (and that reason only), Furlow contended that his arson
convictions should not be counted as a predicate. 4
3
The PSR counted certain of Furlow’s convictions as a single ACCA predicate
offense because he committed those crimes on the same occasion. See 18 U.S.C.
§ 924(e)(1) (requiring that predicates be “committed on occasions different from one
another” in order to be counted separately).
4
As discussed below, Furlow presents in this appeal an entirely different
challenge to the use of his Georgia arson convictions as a predicate for the ACCA and
career offender provision. That is, he abandons his due process vagueness claim and
instead pursues a claim that the elements of the Georgia arson offenses for which he was
convicted are broader than the elements of the “generic” offense of arson, as enumerated
in the ACCA and the Guidelines.
6
In addition, Furlow maintained that — contrary to the PSR’s suggestion — his
South Carolina conviction for distribution of crack cocaine was neither a “serious drug
offense” under the ACCA nor a “controlled substance offense” under the Guidelines.
According to Furlow, the South Carolina statute under which he was convicted, S.C.
Code Ann. § 44-53-375(B), criminalizes a broader swath of conduct than that
encompassed by the definitions of “serious drug offense” and “controlled substance
offense.” Specifically, Furlow asserted that section 44-53-375(B) of the South Carolina
Code proscribes the mere purchase of a controlled substance. For those reasons, Furlow
argued that he did not have the requisite number of predicate convictions for the armed
career criminal and career offender designations.
The district court rejected Furlow’s arguments and adopted the PSR’s
recommendation that he is both an armed career criminal and a career offender. In
assessing Furlow’s contentions, the court applied the so-called “modified categorical
approach” to the state statutes proscribing the relevant Georgia arson offenses and the
South Carolina distribution of crack cocaine offense. That approach is proper when:
(1) a state criminal statute is “divisible” — or in other words, when the statute “list[s]
elements in the alternative . . . thereby defin[ing] multiple crimes” — and (2) at least one
of those crimes has elements that match the elements of a predicate offense specified in
the ACCA or the Guidelines, but another of those crimes does not. See Mathis v. United
States, 136 S. Ct. 2243, 2249 (2016). In applying the modified categorical approach, a
federal court may look to certain state court documents to determine “what crime, with
what elements, [the] defendant was convicted of.” Id. The court must then compare the
7
elements of the defendant’s crime of conviction with the elements of the ACCA or
Guidelines predicate offense, and — if the court determines that the elements match —
the defendant’s prior conviction supports the pertinent sentencing enhancement. Id.
With respect to Furlow’s arson convictions, the district court reviewed Georgia’s
first-degree arson statute, that is, section 16-7-60(a) of the Code of Georgia. The court
accepted the government’s assertion that section 16-7-60(a) is divisible as a result of its
five subsections and that at least one of the crimes defined therein has the same elements
as the “generic” offense of arson enumerated in the ACCA “violent felony” definition
and the Guidelines “crime of violence” definition. Consequently, the court reviewed
several state court documents related to Furlow’s arson convictions and determined that
he had been twice convicted under subsection (1) of section 16-7-60(a), for using fire to
“knowingly damag[e] the dwelling house of another individual.” See J.A. 181. Because
the court concluded that the elements of section 16-7-60(a)(1) matched the elements of
generic arson, the court ruled that Furlow’s Georgia offenses are an ACCA and a career
offender predicate. 5
As to Furlow’s South Carolina conviction for distribution of crack cocaine, the
district court looked to section 44-53-375(B) of the South Carolina Code. The court
explained that the modified categorical approach applies to section 44-53-375(B) because
5
In ruling that Furlow’s Georgia arson convictions are a proper predicate for the
ACCA and career offender provision, the district court implicitly rejected Furlow’s sole
challenge to counting those convictions, that is, his constitutional due process vagueness
contention. Again, the vagueness claim is not pursued on appeal.
8
it creates several different crimes, with at least one of those crimes having elements that
match those of an ACCA “serious drug offense” and a Guidelines “controlled substance
offense.” Utilizing that approach, the court reviewed certain state court documents
related to Furlow’s South Carolina conviction under section 44-53-375(B) and concluded
that Furlow in fact pleaded guilty to distribution of crack cocaine in Lexington County,
South Carolina. The court then compared the elements of Furlow’s South Carolina
offense with the federal definitions of “serious drug offense” and “controlled substance
offense” and found a match. It was thus satisfied that Furlow’s South Carolina
conviction is a proper predicate for the armed career criminal and career offender
designations.
In sum, the district court premised its ACCA ruling on Furlow’s two Georgia drug
convictions, which the court identified as a single predicate; his two Georgia arson
convictions, which the court also counted as a single predicate; and his South Carolina
distribution of crack cocaine conviction. As for the career offender designation, the court
relied on Furlow’s arson and distribution of crack cocaine convictions. Based on that
designation, the court calculated a total offense level of 31 and placed Furlow in a
criminal history category of VI, resulting in an advisory Guidelines range of 188 to 235
months. 6 The court varied downward from the advisory range and sentenced Furlow to
6
According to the probation officer who prepared the PSR, Furlow’s advisory
Guidelines range might have been as low as 46 to 57 months without the career offender
designation.
9
concurrent terms of 180 months in prison. 7 Furlow has appealed the criminal judgment,
and we possess jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
II.
On appeal, Furlow contests the district court’s reliance on his South Carolina
distribution of crack cocaine conviction and his Georgia first-degree arson convictions to
support the armed career criminal and career offender designations. We review de novo
a legal question of whether a prior conviction qualifies as a predicate for the ACCA or
career offender provision. See United States v. Kerr, 737 F.3d 33, 35 (4th Cir. 2013)
(explaining that de novo review applies to whether prior state conviction constitutes
predicate under ACCA); United States v. Jones, 667 F.3d 477, 482 (4th Cir. 2012)
(explaining same for Guidelines career offender provision). When a defendant has not
properly preserved an issue by presenting it to the district court, however, we review his
appellate contention for plain error only. See United States v. Bennett, 698 F.3d 194, 199
(4th Cir. 2012).
7
Because Furlow was designated as an armed career criminal, the mandatory
minimum sentence for his section 922(g)(1) conviction was 180 months. Without the
ACCA enhancement, the maximum sentence for that offense would have been 120
months.
10
III.
A.
Furlow first contends that the district court erred in ruling that his conviction for
distribution of crack cocaine in South Carolina constitutes a predicate for the armed
career criminal and career offender enhancements. According to Furlow, we are obliged
to apply the “categorical approach” — as opposed to the modified categorical approach
utilized by the district court — to the South Carolina statute under which he was
convicted, that is, section 44-53-375(B) of the South Carolina Code. Furlow argues that
section 44-53-375(B) creates a single drug offense and specifies different means of
committing that offense. Because one of those means is the mere “purchase” of a
controlled substance, Furlow maintains that his conviction under section 44-53-375(B)
does not categorically qualify as an ACCA “serious drug offense” nor a Guidelines
“controlled substance offense.” On the other side, the government asserts that the court
correctly applied the modified categorical approach and properly ruled that Furlow’s
conviction pursuant to section 44-53-375(B) constitutes a predicate for each designation.
Because Furlow properly preserved this issue in the district court, we review it de novo.
See United States v. Kerr, 737 F.3d 33, 35 (4th Cir. 2013); United States v. Jones, 667
F.3d 477, 482 (4th Cir. 2012).
1.
a.
Generally, we use the categorical approach when assessing whether a state crime
constitutes a “serious drug offense” under the ACCA or a “controlled substance offense”
11
under the Guidelines. See United States v. Dozier, 848 F.3d 180, 183 (4th Cir. 2017)
(Guidelines); United States v. Williams, 326 F.3d 535, 538 (4th Cir. 2003) (ACCA). In
making a categorical approach analysis, we are obliged to “focus on the elements, rather
than the facts, of the prior offense.” See United States v. Shell, 789 F.3d 335, 338 (4th
Cir. 2015) (alteration and internal quotation marks omitted). Under that approach, we
address only whether “the elements of the prior offense . . . correspond in substance to
the elements of the . . . offense” defined by the ACCA or the Guidelines. See Dozier, 848
F.3d at 183 (alterations and internal quotation marks omitted).
As related above, a modification to the categorical approach is appropriate when a
state statute is divisible (i.e., specifies elements in the alternative, thereby defining
multiple offenses), and at least one of the crimes defined therein has elements that match
the elements of an offense specified in the ACCA or the Guidelines, but another of those
crimes does not. See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). To
determine divisibility, it is important to understand the distinction between the elements
of an offense and the means of committing an offense. See id. at 2256. The “elements”
of an offense “are the constituent parts of a crime’s legal definition — the things the
prosecution must prove to sustain a conviction.” Id. at 2248 (internal quotation marks
omitted). As the Supreme Court has emphasized, “[a]t a trial, [elements] are what the
jury must find beyond a reasonable doubt to convict the defendant; and at a plea hearing,
[elements] are what the defendant necessarily admits when he pleads guilty.” Id.
(citations omitted). By contrast, “means” are the “various factual ways of committing”
an element of an offense. Id. at 2249. The modified categorical approach has no role to
12
play when a state statute specifies alternative means of commission, but it may apply
when a state statute lists elements in the alternative. Id. at 2256.
When applicable, the modified categorical approach permits a sentencing court “to
examine a limited class of documents to determine which of a statute’s alternative
elements formed the basis of the defendant’s prior conviction.” See Descamps v. United
States, 570 U.S. 254, 262 (2013). Those documents (often called “Shepard documents”)
include the state court indictment, a transcript of the plea colloquy in state court, or a
comparable state court record. See Mathis, 136 S. Ct. at 2249. 8 Once a sentencing court
has used those Shepard documents to identify the elements of the particular state offense
for which the defendant was convicted, it must compare those elements with the
definitions of “serious drug offense” and “controlled substance offense.” See id. at 2256.
If there is a match, the defendant’s conviction is a predicate for the ACCA or the career
offender provision, respectively. See id.
b.
Here, the South Carolina statute under which Furlow was convicted provides in
relevant part:
A person who manufactures, distributes, dispenses, delivers, purchases, or
otherwise aids, abets, attempts, or conspires to manufacture, distribute,
dispense, deliver, or purchase, or possesses with intent to distribute,
dispense, or deliver methamphetamine or cocaine base [that is, crack
cocaine] . . . is guilty of a felony.
8
The phrase “Shepard documents” refers to the Supreme Court’s 2005 decision in
Shepard v. United States, 544 U.S. 13, 16 (2005), which specified certain documents that
a court can examine when applying the modified categorical approach.
13
See S.C. Code Ann. § 44-53-375(B). A first offense under section 44-53-375(B) is
punishable by a maximum of fifteen years in prison. See id. § 44-53-375(B)(1).
Because section 44-53-375(B) of the South Carolina Code prohibits the mere
“purchase[]” of methamphetamine or crack cocaine, we agree with Furlow that the statute
is not a categorical match with the federal definitions of “serious drug offense” and
“controlled substance offense.” See 18 U.S.C. § 924(e)(2)(A)(ii) (defining “serious drug
offense”); USSG § 4B1.2(b) (defining “controlled substance offense”). We must
therefore assess and decide whether the statute is divisible, and thus amenable to the
modified categorical approach. In so doing, we look to sources like the statutory text and
South Carolina court decisions interpreting it. See Mathis, 136 S. Ct. at 2257.
Starting with section 44-53-375(B)’s text, nothing therein clearly suggests that the
various specified actions are means rather than elements. As the Supreme Court
explained in Mathis, the language of a state statute itself might answer the divisibility
inquiry by “identify[ing] which things must be charged (and so are elements) and which
need not be (and so are means),” or by specifying a list of “illustrative examples.” See
136 S. Ct. at 2256 (internal quotation marks omitted). Because section 44-53-375(B)’s
text does not have those indicators, we are entitled to turn to the relevant state court
decisions to discern whether those courts treat the listed alternatives as elements or
means. See id.
Our review of South Carolina precedents leads us to conclude that the state courts
have treated the alternatives specified in section 44-53-375(B) as distinct offenses with
14
different elements. By way of example, in State v. Brown, the Court of Appeals of South
Carolina explained that two of the actions specified in section 44-53-375(B) — that is,
distribution of crack cocaine and possession of crack cocaine with intent to distribute —
are separate “statutory crimes.” See 461 S.E.2d 828, 831 (S.C. Ct. App. 1995); see also
State v. Gill, 584 S.E.2d 432, 434 (S.C. Ct. App. 2003) (identifying “the elements of
distribution of crack cocaine”); State v. Watts, 467 S.E.2d 272, 277 (S.C. Ct. App. 1996)
(same). In the same vein, the state courts have treated manufacturing as a separate
offense. See Carter v. State, 495 S.E.2d 773, 776-77 (S.C. 1998); cf. State v. Austin, 279
S.E.2d 374, 375 (S.C. 1981) (treating “manufacture” of marijuana as separate offense
under nearly identical statute). And those courts also treat conspiracy under section 44-
53-375(B) as a distinct offense. See State v. Mouzon, 485 S.E.2d 918, 919, 922 (S.C.
1997) (describing indictment and conviction for crime of “conspiracy to distribute crack
cocaine”); cf. Harden v. State, 602 S.E.2d 48, 50 (S.C. 2004) (explaining that
“[c]onspiracy is a separate offense from the substantive offense, which is the object of the
conspiracy” in the context of section 44-53-375). Because the South Carolina courts treat
the alternatives specified in section 44-53-375(B) as separate offenses with different
elements, we are satisfied that the statute is divisible.
Our divisibility ruling garners support from persuasive authority. 9 For example, in
an unpublished opinion in United States v. Marshall, we ruled divisible an almost
9
In recent unpublished decisions, we have twice ruled, without detailed
explanation, that section 44-53-375(B) is divisible. See United States v. Cheeseboro, 757
(Continued)
15
identical South Carolina drug statute, section 44-53-370(a)(1) of the South Carolina
Code. See 747 F. App’x 139, 150 (4th Cir. 2018). 10 For our purposes, the sole
distinction between section 44-53-370(a)(1) and section 44-53-375(B) is that the former
applies to all controlled substances and controlled substance analogues, while the latter
concerns specifically methamphetamine and crack cocaine.
In the Marshall decision, Judge Keenan emphasized that the South Carolina courts
treat the alternatives specified in section 44-53-370(a)(1) as distinct crimes. See id. In
particular, Marshall observed that the “[c]ourts in South Carolina treat the purchase of a
controlled substance as a distinct crime from possession with intent to distribute.” Id.
(citing State v. Watson, No. 2013-UP-312, 2013 WL 8538756, at *2 (S.C. Ct. App. July
3, 2013)). The Marshall decision further explained that South Carolina prosecutors
“charge one of the listed statutory alternatives [specified in section 44-53-370(a)(1)] in
state court indictments” and that “South Carolina juries typically are instructed to find
one of the alternative elements listed in the statute beyond a reasonable doubt.” Id.
F. App’x 224, 227 (4th Cir. 2018); United States v. Sulton, 740 F. App’x 45, 46 (4th Cir.
2018).
10
The South Carolina statute at issue in Marshall provides that it is unlawful for a
person
to manufacture, distribute, dispense, deliver, purchase, aid, abet, attempt, or
conspire to manufacture, distribute, dispense, deliver, or purchase, or
possess with the intent to manufacture, distribute, dispense, deliver, or
purchase a controlled substance or a controlled substance analogue.
See S.C. Code Ann. § 44-53-370(a)(1).
16
Additionally, Marshall observed that the Fifth Circuit had held that section 44-53-370(a)
of the South Carolina Code is divisible. Id. (discussing United States v. Rodriguez-
Negrete, 772 F.3d 221, 226-27 (5th Cir. 2014)). The Marshall panel thus concluded that
section 44-53-370(a)(1) is divisible. Id. And Marshall’s thorough analysis of section 44-
53-370(a)(1) reinforces our decision that section 44-53-375(B) is divisible. See Collins v.
Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006) (explaining that our
unpublished decisions are “entitled . . . to the weight they generate by the persuasiveness
of their reasoning” (internal quotation marks omitted)). 11
c.
Furlow resists our ruling on the divisibility question for several reasons, but none
require a different result. For example, Furlow argues that a jury instruction for a
different subsection of section 44-53-375 (that is, subsection (C)) establishes that a jury in
South Carolina is charged with the entire list of alternatives specified in that subsection. 12
11
Our ruling regarding the divisibility of section 44-53-375(B) is consistent with
the decisions of our sister circuits assessing the divisibility of similar state drug offense
statutes. See United States v. Mohamed, 920 F.3d 94, 101 (1st Cir. 2019) (concluding
that Maine drug statute is divisible); United States v. Martinez-Lopez, 864 F.3d 1034,
1041-43 (9th Cir. 2017) (same for California drug statute); United States v. Maldonado,
864 F.3d 893, 898 (8th Cir. 2017) (same for Iowa and Nebraska drug statutes); Flores-
Larrazola v. Lynch, 854 F.3d 732, 732 (5th Cir. 2017) (same for Arkansas drug statute);
Spaho v. United States Attorney Gen., 837 F.3d 1172, 1177-78 (11th Cir. 2016) (same for
Florida drug statute).
12
As relevant here, subsection (C) of section 44-53-375 provides:
A person who knowingly sells, manufactures, delivers, purchases, or brings
into this State, or who provides financial assistance or otherwise aids, abets,
attempts, or conspires to sell, manufacture, deliver, purchase, or bring into
(Continued)
17
See Mathis, 136 S. Ct. at 2257 (explaining that sentencing court can consider state court
jury instructions in assessing divisibility). Furlow fails to demonstrate, however, that the
instruction is approved and used by the state courts in charging an offense under
subsection (B). In any event, a review of the complete set of instructions relied on by
Furlow reveals that there are separate jury charges for the offenses of possession with
intent to distribute a controlled substance and distribution of a controlled substance,
which also shows that subsection (B) of section 44-53-375 is divisible. See Marshall,
747 F. App’x at 150 (emphasizing that “South Carolina juries typically are instructed to
find one of the alternative elements listed in” section 44-53-370(a)(1)). 13
Furlow also contends that the alternatives specified in section 44-53-375(B) are
means of committing a single offense because there is a uniform penalty for a violation of
the statute. Insofar as section 44-53-375(B) prescribes the same penalty for each
alternative action, that attribute does not outweigh the state court decisions treating those
this State, or who is knowingly in actual or constructive possession or who
knowingly attempts to become in actual or constructive possession of ten
grams or more of methamphetamine or cocaine base . . . is guilty of a
felony which is known as “trafficking in methamphetamine or cocaine
base.”
See S.C. Code Ann. § 44-53-375(C).
13
The jury instructions referenced herein were previously contained on the South
Carolina judicial branch’s website. Those instructions were never approved by South
Carolina’s high court and were later removed from the website. See
https://www.sccourts.org/whatsnew/displaywhatsnew.cfm?indexID=896 (last visited
June 14, 2019).
18
actions as separate offenses with different elements. See Mathis, 136 S. Ct. at 2256
(explaining that sentencing court need not look beyond state court decision “definitively
answer[ing]” question of divisibility). Moreover, as the Supreme Court explained in
Mathis, the penalties prescribed by a state statute are most relevant to the divisibility
inquiry when the statutory alternatives are punished differently. And Furlow maintains
that that is not the case under section 44-53-375(B). See id. (“If statutory alternatives
carry different punishments, then . . . they must be elements.”).
Finally, Furlow argues that “[i]ndictments in South Carolina drug cases indicate
that [section] 44-53-375 and similar South Carolina drug statutes are not divisible.” See
Br. of Appellant 14. According to Furlow, state court indictments charging a violation of
section 44-53-375(B) or other drug statutes consistently list all of the statutory
alternatives, which demonstrates that the alternatives are means and not elements. See
United States v. Jones, 914 F.3d 893, 901 n.8 (4th Cir. 2019) (explaining that “when a
charging document reiterates all the terms of the state law, that is an indication that each
alternative is only a possible means of commission” (alterations and internal quotation
marks omitted)). Although Furlow identifies several state court indictments that list
many of the alternatives specified in various South Carolina drug statutes, other state
court indictments charging violations of those statutes are more specific. See, e.g., Gill,
584 S.E.2d at 434; Carter, 495 S.E.2d at 776-77. 14 We are unpersuaded that the sloppy
14
Furlow’s own indictment for violating section 44-53-375(B) is titled
“Indictment for Distribution of Crack,” and it lists all of the actions set forth in that
statute, plus some that are not, such as “cultivate.” See J.A. 74. It seems that certain text
(Continued)
19
drafting of indictments on some occasions overrides the state courts’ clear indications
that the alternatives specified in section 44-53-375(B) are distinct offenses. See Mathis,
136 S. Ct. at 2257 (explaining that sentencing court can take “peek” at record documents,
such as indictment, when “state law fails to provide clear answers” on divisibility). 15
2.
Having determined that section 44-53-375(B) is divisible and subject to the
modified categorical approach, we are entitled to also analyze the relevant Shepard
documents in Furlow’s state prosecution. See Mathis, 136 S. Ct. at 2249. According to
the transcript of Furlow’s plea hearing in the Circuit Court for Lexington County, he
pleaded guilty to distribution of crack cocaine, which is punishable by a maximum of
fifteen years in prison. See id. (explaining that sentencing court can review transcript of
plea hearing). The elements of that offense are that the defendant “had actual control, or
the right to exercise control over the crack cocaine,” and that “he knowingly distributed
or delivered the crack cocaine.” See Watts, 467 S.E.2d at 277.
of the indictment is bolded, including Furlow’s name (“Bryshun Genard Furlow”) and
the words “sell,” “distribute,” and “cocaine base.” Id.
15
Furlow also argues that our recognition that section 44-53-375(B) is divisible
renders duplicitous countless state court drug offense indictments. See United States v.
Burns, 990 F.2d 1426, 1438 (4th Cir. 1993) (explaining that an indictment is duplicitous
when it “join[s] in a single count . . . two or more distinct and separate offenses” (internal
quotation marks omitted)). Even if correct, Furlow identifies a potential issue best raised
with — and resolved by — state prosecutors and the South Carolina courts.
20
Comparing those elements with the definitions of “serious drug offense” and
“controlled substance offense,” we are satisfied that there is a match. As previously
explained, a “serious drug offense” includes a state law offense that involves
“distributing . . . a controlled substance . . . for which a maximum term of imprisonment
of ten years or more is prescribed by law,” see 18 U.S.C. § 924(e)(2)(A)(ii), and a
“controlled substance offense” includes a state law offense “punishable by imprisonment
for a term exceeding one year, that prohibits the . . . distribution . . . of a controlled
substance,” see USSG § 4B1.2(b). Because of the alignment of the state offense
elements and the federal definitions, the district court did not err in ruling that Furlow’s
section 44-53-375(B) conviction for distribution of crack cocaine is an ACCA and career
offender predicate.
B.
1.
Furlow also contends that the district court erred in ruling that his convictions for
Georgia first-degree arson constitute convictions for a “violent felony” under the ACCA
and a “crime of violence” under the Guidelines. In pressing that contention, he asserts
that the elements of his offenses of conviction are broader than — and therefore do not
match — the elements of “generic” arson (that is, arson as defined and “used in the
criminal codes of most [s]tates”). See Taylor v. United States, 495 U.S. 575, 598 (1990).
Because Furlow did not present that issue to the sentencing court, we are constrained to
review it for plain error. See United States v. Zayyad, 741 F.3d 452, 459 (4th Cir. 2014)
(“To preserve an argument on appeal, the defendant must object on the same basis below
21
as he contends is error on appeal.”); see also United States v. Farrad, 895 F.3d 859, 887-
88 (6th Cir. 2018) (reviewing contention for plain error that ACCA enhancement was
erroneously applied); United States v. Boman, 873 F.3d 1035, 1040 (8th Cir. 2017)
(same). To succeed on plain error review, Furlow “must show (1) that the district court
erred, (2) that the error was plain, and (3) that the error affected his substantial rights.”
See United States v. Cohen, 888 F.3d 667, 685 (4th Cir. 2018). Even if Furlow satisfies
those three requirements, however, “we possess discretion on whether to recognize the
error, but we should not do so unless the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal quotation marks omitted).
2.
a.
As heretofore explained, the ACCA “violent felony” definition and the Guidelines
“crime of violence” definition enumerate “arson” as a qualifying predicate. See 18
U.S.C. § 924(e)(2)(B)(ii); USSG § 4B1.2(a)(2). A conviction under a state arson statute
qualifies as a “violent felony” or a “crime of violence” only if the elements of the offense
of conviction — as defined by the state statute — “substantially correspond[]” to (or are
narrower than) the elements of generic arson. See Taylor, 495 U.S. at 602; see also
Mathis, 136 S. Ct. at 2251. Here, the Georgia arson statute under which Furlow has been
twice convicted provides:
A person commits the offense of arson in the first degree when, by means
of fire or explosive, he or she knowingly damages or knowingly causes,
aids, abets, advises, encourages, hires, counsels, or procures another to
damage . . . [a]ny dwelling house of another without his or her consent or in
which another has a security interest, including but not limited to a
22
mortgage, a lien, or a conveyance to secure debt, without the consent of
both, whether it is occupied, unoccupied, or vacant.
See Ga. Code Ann. § 16-7-60(a)(1).
Furlow contends that, because a defendant can be convicted under section 16-7-
60(a)(1) of the Code of Georgia for “knowingly caus[ing], aid[ing], abet[ting], advis[ing],
encourag[ing], hir[ing], counsel[ing], or procur[ing] another to damage” the dwelling of
another by fire, the statute is broader than generic arson. According to Furlow, in order
to qualify as generic arson, the Georgia arson offense must require — at minimum — the
mens rea of maliciousness. Furlow asserts that section 16-7-60(a)(1)’s list of actions
encompasses conduct that can be completed with a mens rea that is less culpable than
maliciousness. 16
For support, Furlow relies on our decision in United States v. Knight, 606 F.3d
171, 172-75 (4th Cir. 2010), which assessed the meaning of “arson” as used in the
Guidelines “crime of violence” definition. We therein determined that the “generic crime
of arson involves the burning of real or personal property.” Id. at 174. Although Knight
mentioned several decisions of our sister circuits describing generic arson as the
“malicious” burning of real or personal property, we did not identify the threshold mens
16
Section 16-7-60(a) of the Code of Georgia contains five subsections describing
conduct that constitutes first-degree arson. Based on those subsections, the district court
ruled that section 16-7-60(a) is divisible. In this appeal, the parties do not contest the
court’s divisibility analysis. They also agree that Furlow was twice convicted under
subsection (1) of section 16-7-60(a). In addition, Furlow’s mens rea argument would
apply to each subsection of 16-7-60(a). In making our plain error analysis, we therefore
need not — and do not — decide whether the court’s divisibility ruling is correct.
23
rea required for a generic arson. Id. 17 And the Knight panel ruled that a Texas arson
offense without an explicit maliciousness requirement satisfied the definition of generic
arson. Id. at 174-75 (citing Tex. Penal Code Ann. § 28.02(a)(1)).
Contrary to Furlow’s position, Knight does not establish a plain error in these
proceedings. Crucially, we were not confronted in Knight with a state arson statute like
section 16-7-60(a)(1) of the Code of Georgia, which proscribes not only knowingly
damaging the dwelling of another by fire, but also “knowingly caus[ing], aid[ing],
abet[ting], advis[ing], encourag[ing], hir[ing], counsel[ing], or procur[ing] another to
damage” the dwelling of another by fire. See Ga. Code Ann. § 16-7-60(a)(1).
Accordingly, under the second prong of the plain error analysis, Knight does not render
“clear or obvious” any error that the district court might have committed here. See
United States v. Oceanic Illsabe Ltd., 889 F.3d 178, 200 (4th Cir. 2018) (“A plain error is
said to be an error so clear or obvious that it jumps off the page.” (internal quotation
marks omitted)).
b.
Other than Knight, Furlow fails to identify any decision of this Court or the
Supreme Court to support his mens rea position. See United States v. Davis, 855 F.3d
17
Our 2010 decision in Knight relied in part on the Eighth Circuit’s 2009 ruling in
United States v. Whaley, 552 F.3d 904 (8th Cir. 2009). On the mens rea issue, the
Whaley court explained that “[a]lmost all of the state criminal codes [proscribing arson]
use one or a combination of the following mental states: intentionally, willfully,
maliciously, wantonly, and knowingly.” Id. at 907 (internal quotation marks omitted).
The Eighth Circuit “perceive[d] little difference among th[ose] terms in the context of an
offense that forbids destroying property by fire.” Id.
24
587, 595-96 (4th Cir. 2017) (explaining that error is plain if, “at the time of appellate
consideration, the settled law of the Supreme Court or this Court establishes that an error
has occurred”). In fact, we have concluded, albeit in unpublished decisions, that
convictions pursuant to state statutes that prohibit aiding, counseling, or procuring the
burning of property are generic arson convictions. See United States v. Craig, 236 F.
App’x 863, 865 (4th Cir. 2007) (ruling that conviction under Virginia arson statute, Va.
Code Ann. § 18.2-81, was generic arson conviction); United States v. Neilson, 141 F.3d
1161, 1998 WL 184030, at *1 (4th Cir. Apr. 20, 1998) (table) (concluding that conviction
for third-degree arson in West Virginia was conviction for generic arson).
In addition, at least two other courts of appeals have rejected an argument nearly
identical to that pursued by Furlow in this appeal. See United States v. Perez-Tapia, 241
F. App’x 416, 418 (9th Cir. 2007); United States v. Hathaway, 949 F.2d 609, 610-11 (2d
Cir. 1991); see also United States v. Carthorne, 726 F.3d 503, 516-17 (4th Cir. 2013)
(“When we have yet to speak directly on a legal issue . . . a district court does not commit
plain error by following the reasoning of another circuit.” (internal quotation marks
omitted)). Against that backdrop, we are satisfied that Furlow has not established plain
error in the district court’s ruling that the Georgia first-degree arson convictions
constitute a predicate for the ACCA and the career offender provision.
25
IV.
Pursuant to the foregoing, we reject Furlow’s challenges to his sentence and affirm
the criminal judgment.
AFFIRMED
26