IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-20855
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES SANDLE,
Defendant-Appellant.
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Appeal from the United States District Court for the
Southern District of Texas
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September 16, 1997
Before GARWOOD, JONES and STEWART, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant James Sandle (Sandle), convicted pursuant
to his guilty plea of conspiracy to possess with intent to
distribute cocaine base, appeals his 240-month sentence. Sandle
asserts that the district court erred by using a prior Texas state
conviction for cocaine possession to enhance his federal sentence
and that the amount of cocaine base attributed to him in his
presentence investigation report improperly reflected amounts
attributable to his co-conspirators prior to his involvement in the
conspiracy. The district court overruled his objections and
sentenced him to the statutory minimum of twenty years’
imprisonment. We affirm.
Facts and Proceedings Below
As a result of an investigation conducted by the Brazos
County, Texas, Narcotics Task Force and other local, state, and
federal agencies concerning the crack cocaine market and
distribution system in the Bryan/College Station, Texas, area, a
federal grand jury returned a seventy-one count indictment charging
Sandle and thirteen others with various drug-related offenses.
Prior to re-arraignment, the government gave notice as required by
21 U.S.C. § 851 that it would seek to use Sandle’s 1992 Texas state
conviction for felony cocaine possession for sentence enhancement
under 21 U.S.C. § 841(b)(1)(A). Pursuant to a plea agreement,
Sandle pleaded guilty to conspiracy to possess with intent to
distribute in excess of fifty grams of cocaine base, 21 U.S.C. §
841(b)(1)(A); 846 (count 2 of the indictment). The district court
sentenced Sandle to 240 months’ imprisonment, 10 years’ supervised
release, and a $50 special assessment. Also pursuant to Sandle’s
plea agreement, the government filed a motion to dismiss the
remaining counts against Sandle, which the district court granted.
Sandle appeals his sentence enhancement and the district court’s
adoption of the presentence investigation report. We affirm.
Discussion
Sandle complains that the district court erred by applying
section 841(b)(1)(A)’s enhancement provision to his conviction
premised on a prior Texas state felony conviction for possession of
cocaine and by attributing to him an amount of crack cocaine
unsupported by his involvement with the drug conspiracy. “‘We will
2
uphold a sentence unless it (1) was imposed in violation of law,
(2) resulted from an incorrect application of the guidelines, (3)
was outside the guideline range and is unreasonable, or (4) was
imposed for an offense for which there is no applicable sentencing
guideline and is plainly unreasonable.’” United States v. Mathena,
23 F.3d 87, 89 (5th Cir. 1994) (quoting United States v. Headrick,
963 F.2d 777, 779 (5th Cir.1992)). In this regard, the district
court’s interpretation of a federal statute is subject to de novo
review. Id.
I. “Felony Drug Offense”
Sandle first contends that the district court erred by denying
his motion to set aside his sentence enhancement under 21 U.S.C. §
841(b)(1)(A). According to Sandle, because the applicable statute
contains no express definition of “felony drug offense,” we should
look to section 4B1.2(2) of the United States Sentencing
Guidelines, which defines “controlled substance offense.”1 As
“controlled substance offense” under section 4B1.2(2) requires an
intent to manufacture, import, export, or distribute, United States
v. Gaitan, 954 F.2d 1005, 1008 (5th Cir. 1992), Sandle argues that
enhancement under section 841(b)(1)(A) likewise should not be
1
U.S.S.G. § 4B1.2, which defines the terms used in the career
offender guideline (U.S.S.G. § 4B1.1), provides:
“(2) The term ‘controlled substance offense’ means an
offense under a federal or state law prohibiting the
manufacture, import, export, distribution, or dispensing
of a controlled substance (or a counterfeit substance) or
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(2).
3
permitted when a prior “felony drug offense” is for “mere”
possession. As Sandle’s argument is founded on an erroneous
reading of the enhancement statute, we reject his argument and
affirm the district court’s application of section 841(a)(1)(A)’s
enhancement provision.
Section 841(b)(1)(A), as currently written, provides in
pertinent part:
“(b) Except as otherwise provided in section 859, 860, or
861 of this title, any person who violates subsection (a)
of this section shall be sentenced as follows:
(1)(A) In the case of a violation of subsection (a)
of this section involving—
. . .
(iii) 50 grams or more of a mixture or
substance described in clause (ii) which
contains cocaine base;
such person shall be sentenced to a term of imprisonment
which may not be less than 10 years or more than life
. . . . If any person commits such a violation after a
prior conviction for a felony drug offense has become
final, such person shall be sentenced to a term of
imprisonment which may not be less than 20 years and not
more than life imprisonment . . . .” 21 U.S.C. §
841(b)(1)(A) (West Supp. 1997) (emphasis added).
Far from omitting a statutory definition of “felony drug offense,”
section 802(44) provides:
“(44) The term ‘felony drug offense’ means an offense
that is punishable by imprisonment for more than one year
under any law of the United States or of a State or
foreign country that prohibits or restricts conduct
relating to narcotic drugs, marihuana, or depressant or
stimulant substances.” 21 U.S.C. § 802(44) (West Supp.
1997).
This statutory definition has remained essentially consistent since
its inception, in slightly different form, in 1984.2
2
Prior to 1984, the enhancement provision applied only to
prior federal drug-related felonies. See 21 U.S.C. § 841(b)(1)(A)
4
Sandle does not dispute that his prior Texas state conviction
for possession of cocaine was final, Gaitan, 854 F.2d at 69, or
that it was, in fact, an otherwise qualifying felony.3 Nor does
Sandle dispute that Texas’ system of deferred adjudication does not
constitute a conviction for the purposes of section 841(b)(1)(A)’s
sentence enhancement provision. See United States v. Cisneros, 112
F.3d 1272, 1282 (5th Cir. 1997). Rather, in the face of the
statutory definition, which does not require the additional
elements that he would have us read into “felony drug offense,”
(1981)
(“felony under any other provision of this subchapter or subchapter
II of this chapter or other law of the United States relating to
narcotic drugs, marihuana, or depressant or stimulant substances”)
(emphasis added). Section 502(1)(B)(iii) of the Comprehensive
Crime Control Act of 1984, Pub L. No. 98-473, 98 Stat. 1976, 2069,
however, amended section 841(b)(1)(A) to apply to prior felony
convictions for drug-related offenses “of a State, the United
States, or a foreign country.” Later, in 1988, Congress amended
section 841(b)(1)(A)’s sentence enhancement provision to apply to
“felony drug offense[s]” and defined the term within the same
subparagraph. Anti-Drug Abuse Act of 1988, § 6452(a)(1)&(2), Pub.
L. No. 100-690, 102 Stat. 4181, 4371 (“For purposes of this
subparagraph, the term ‘felony drug offense’ means an offense that
is a felony under any provision of this title or any other Federal
law that prohibits or restricts conduct relating to narcotic drugs,
marihuana, or depressant or stimulant substances or a felony under
any law of a State or a foreign country that prohibits or restricts
conduct relating to narcotic drugs, marihuana, or depressant or
stimulant substances.”) (codified at 21 U.S.C. § 841(b)(1)(A)). In
1994, Congress moved the definition of “felony drug offense” from
section 841(b)(1)(A) to 21 U.S.C. § 802(43), slightly altering the
wording to reflect its present incantation. Violent Crime Control
Act of 1994, § 90105(c)&(d), Pub. L. No. 103-322, 108 Stat. 1796,
1988. In 1996, the definition was renumbered. Comprehensive
Methamphetamine Control Act of 1996, § 401(b)(3), Pub. L. No. 104-
237, 110 Stat. 3099, 3107 (renumbering definition as section
802(44)).
3
The Texas sentence imposed on Sandle for his prior cocaine
possession offense was a term of ten years’ imprisonment, probated
over eight years.
5
Sandle simply argues that application of section 841(b)(1)(A)’s
enhancement provision is improperly triggered by a felony
conviction for “mere” possession. Although this Court has affirmed
sentences that were enhanced under section 841(b)(1)(a) for prior
state convictions for simple possession of a controlled substance,
see United States v. Kubosh, 63 F.3d 404, 405-06 (5th Cir. 1995)
(rejecting arguments that, under section 841(b)(1)(A), prior
possession convictions were improperly used to enhance sentence
because they were constitutionally invalid, not separately
countable, and misdemeanors in other jurisdictions), vacated on
other grounds, 116 S.Ct. 1012 (1996); United States v. Steen, 55
F.3d 1022, 1028 (5th Cir.) (rejecting challenge to enhancement
based on improper notice under section 851), cert. denied, 116
S.Ct. 577 (1995); United States v. Morales, 854 F.2d 65, 68 (5th
Cir. 1988) (rejecting argument that probated sentence for
possession of marihuana was not “final” for purposes of section
841(b)(1)(A) enhancement), we have yet to expressly address this
precise issue.
The Eleventh Circuit, in United States v. Hansley, 54 F.3d
709, 715-16 (11th Cir.), cert. denied, 116 S.Ct. 540 (1995),
rejected an argument similar to that advanced by Sandle. In
Hansley, the appellant challenging his enhancement under section
841(b)(1)(A) argued that Congress did not intend to subject “mere
possession offenses” to the enhancement provision. Id. at 717.
Quoting the definition of “felony drug offense,” the Eleventh
Circuit held that “under the plain language of the statute, it
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appears that a ‘felony drug offense’ includes any criminal conduct
relating to narcotics, including simple possession, which a state
has proscribed as a felony.” Id. at 718 (emphasis in original).
The Eleventh Circuit also observed that the use of “serious drug
offense” in 18 U.S.C. § 924(e), which is limited to “‘offense[s]
under State law, involving manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled
substance,’” id. (quoting 18 U.S.C. § 924(e)(2)(A)(ii)), and
thereby expressly excludes state convictions for simple possession,
supports an inference that Congress intended no such limitation to
apply in section 841(b)(1)(A). See also United States v. Mabry, 3
F.3d 244, 251 (8th Cir. 1993) (noting that “felony drug offense” in
section 841(a)(1)(B) is defined “to include any felony drug offense
under state law”), cert. denied, 114 S.Ct. 1403 (1994).
We find Haynes persuasive. Nothing in the statutory
definition of “felony drug offense” suggests that the term is
limited to those possession offenses involving an additional intent
element. Neither section 841(b)(1)(A) nor section 802(44) is
ambiguous in this regard. Although Sandle would have us look to
the more restrictive definition of “controlled substance offense”
under section 4B1.2(2) of the Sentencing Guidelines, we have no
need to utilize the guidelines where the statute plainly mandates
a more severe sentence. “[T]he guidelines provide that ‘[w]here a
statutorily required minimum sentence is greater than the maximum
of the applicable guideline range, the statutorily required minimum
sentence shall be the guideline sentence.’” United States v.
7
Levay, 76 F.3d 671, 674 (5th Cir. 1996) (quoting U.S.S.G. §
5G1.1(b) (1993)). See also United States v. McGlory, 968 F.2d 309,
349 (3d Cir. 1992) (rejecting appellant’s position that U.S.S.G. §
4B1.2 definition of “prior felony conviction” should control for
purposes of section 841(b)(1)(A) because the statutory definition
was clear and not so limited), cert. denied, 113 S.Ct. 1388 (1993).
We hold that the statutory definition of “felony drug offense”
set forth in section 802(44) controls this appeal and that a felony
state conviction for simple possession that otherwise qualifies
under section 841(a)(1)(B) triggers that section’s enhancement
provision. The definition Sandle proffers from the guidelines is
inapposite. It is undisputed that under Texas law Sandle’s cocaine
possession for which he was previously convicted by the Texas court
constituted under Texas law a violation of that law’s prohibition
or restriction of conduct relating to narcotic drugs which was
punishable under that law by imprisonment for more than one year.
Sandle’s prior Texas state conviction for cocaine possession was
properly considered a prior felony drug offense under section
841(b)(1)(A)’s enhancement provision.
II. Presentence Investigation Report
Sandle next argues that the district court erred by denying
his objection to the presentence investigation report’s attribution
to him of the 683 grams of cocaine for which his co-conspirator
Melvin Smith, the leader and organizer of the drug conspiracy, was
held accountable. According to Sandle, as he was not involved in
the drug conspiracy until February 1994, he should not have drugs
8
from deals completed prior to his entry into the conspiracy
attributed to him. Sandle argues that a lower figure—63.64
grams—should have been attributed to him.
Assuming Sandle’s assertion to be true, his sentence is
nevertheless supported under section 841(b)(1)(A), which calls for
a minimum sentence of 240 months for prior felony drug offenders,
like Sandle, who are convicted of conspiracy to possess with intent
to distribute “50 grams or more of a mixture or substance . . .
which contains cocaine base.” 21 U.S.C. §§ 841(b)(1)(A)(iii); 846
(West Supp. 1997). In his written objections to the presentence
investigation report, Sandle expressly acknowledged that 63.64
grams of cocaine base were properly attributable to him. Had the
district court not attributed the additional cocaine base to
Sandle, it nevertheless could not have been any more lenient to him
than it was. Even using solely Sandle’s admitted amount, he would
have received the mandatory statutory minimum—twenty years’
imprisonment. His sentence could not have been any lower in light
of his prior Texas state felony drug conviction. Accordingly, any
error (if there was any) in this regard was harmless. See United
States v. Gonzalez-Balderas, 11 F.3d 1218, 1224-25 (5th Cir.)
(rejecting sentencing challenge where either the amount attributed
to appellant (13,600 kilograms) or the amount limited to the
cocaine actually received by appellant (3,600 kilograms) would have
resulted in the same offense level), cert. denied, 114 S.Ct. 2138
(1994). As the district court would necessarily have reached the
9
same sentencing result regardless of Sandle’s asserted error,4 a
remand is unnecessary. Williams v. United States, 112 S.Ct. 1112,
1120-21 (1992).
Conclusion
As the district court properly found that Sandle’s 1992 Texas
state felony drug conviction for cocaine possession triggered the
enhanced sentencing provision of 21 U.S.C. § 841(b)(1)(A), and
because the asserted misattribution of an additional amount of
cocaine base to Sandle over 63.64 grams, if indeed it was a
misattribution, did not in any way affect, and could not have
affected, the district court’s conclusion that Sandle came within
the terms of the statutory mandatory minimum sentence which the
district court imposed in light of the 63.64 grams Sandle
acknowledged were properly attributed to him, we AFFIRM Sandle’s
conviction and sentence.
AFFIRMED
4
The district court itself recognized this.
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