United States v. Karam

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 7, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
v. No. 06-8056
PATRICK KARAM ,

Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF W YOM ING
(D .C . NO. 05-CR-59-W FD)

Thomas B. Jubin, Jubin & Zerga, LLC, Cheyenne, W yoming, for D efendant-
Appellant.

James C. Anderson, Assistant United States Attorney (M atthew H. M ead, United
States Attorney, with him on the brief), District of W yoming, Cheyenne,
W yoming, for Plaintiff-Appellee.

Before M U RPH Y, M cW ILLIAM S, and M cCO NNELL, Circuit Judges.

M U RPH Y, Circuit Judge.

I. Introduction

Following a traffic stop and a search of his vehicle, Patrick Karam w as

indicted for possession with intent to distribute more than 100 kilograms of
marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). Karam filed a

motion to suppress all evidence seized from his vehicle, arguing he was

unlawfully detained in violation of the Fourth Amendment. The district court

denied the motion. In doing so, it concluded the detention did not violate the

Fourth Amendment because the officer had reasonable suspicion Karam w as

engaged in criminal activity. Karam then entered a conditional guilty plea,

preserving his right to appeal the denial of the motion to suppress. At sentencing,

the district court determined Karam qualified as a career offender pursuant to

USSG § 4B1.1(a) and sentenced him to 110 months’ imprisonment. On appeal,

Karam challenges both the district court’s denial of the motion to suppress and its

application of the career offender sentencing guideline. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, this court affirms the district court’s denial of the

motion to suppress and affirms Karam’s sentence.

II. Background

W hile traveling eastbound on Interstate 80 in Albany County, W yoming,

W yoming Highway Patrol Trooper Joseph Scimone observed an eastbound

Pontiac M ontana minivan driven by Karam following another vehicle too closely.

Scimone activated his emergency lights and pulled Karam over to the right

shoulder of the road. Scimone then approached the vehicle and asked Karam for

his driver’s license, registration, and proof of insurance. As he approached,

Scimone looked through the windows of the vehicle and observed a stack of

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neatly packaged cardboard boxes and a piece of luggage, which he later described

as a “carry-on bag,” set on top of the boxes behind the driver’s seat. Karam

provided his driver’s license and a one-way rental agreement indicating the car

had been rented in Los Angeles, California and would be returned in Akron, Ohio.

Scimone then asked Karam to accompany him to his patrol vehicle.

W hen Karam got to the vehicle, he said he needed to use the restroom.

Scimone responded by pointing out Karam had just passed a truck stop with

restroom facilities four miles before Scimone pulled him over. Karam then made

a statement which Scimone interpreted as an assertion that Karam had stopped at

the truck stop exit to purchase tea. Scimone, however, had been following Karam

when he passed the exit and knew Karam had not stopped there.

W hile Scimone and Karam w ere sitting in the patrol vehicle, Scimone

asked Karam questions about his travel plans, including where he was coming

from and where he was going. Karam explained he was traveling to Akron from

Los A ngeles, w here he had spent the last week and a half visiting his niece. H e

stated he had flown to Los A ngeles and then rented the vehicle to return to his

home in Akron. Following this exchange, Scimone informed Karam he w ould be

giving him a warning for following another vehicle too closely. Scimone then

began to fill out the w arning and attempted to run a check of K aram’s driver’s

license with dispatch. Because Scimone mistakenly reported a number different

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from the actual driver’s license number, dispatch repeatedly responded that the

driver’s license was not on file.

Scimone continued to ask Karam questions about his travel history and his

vacation in Los Angeles. W hen Scimone asked Karam w hy he chose to drive

back to Akron rather than flying, Karam explained he was transporting some

items, including clothes and pictures, for another niece who had recently moved

back to Akron from Los Angeles to be with her sick father. Scimone then asked

Karam where his niece lived in Los A ngeles. Karam first responded that he did

not know where she lived and then indicated she lived thirty to forty-five minutes

from the Beverly Center. Scimone later characterized Karam’s answ ers to his

questions as vague. 1 Eventually, after approximately ten minutes of unsuccessful

attempts to confirm the validity of Karam’s driver’s license, Scimone gave Karam

the warning, returned his driver’s license and rental agreement, and told him he

could proceed on his way.

As Karam w as walking back to his vehicle, Scimone asked Karam if he

could ask him a few more questions and Karam agreed. Scimone again asked

Karam w here his niece lived in Los Angeles and specifically asked whether

1
Scimone also testified Karam appeared “quite nervous” during the traffic
stop. The district court, however, rejected this characterization of K aram’s
demeanor and found “[t]here is no indication that M r. Karam w as unusually or
extraordinarily nervous.” The government does not challenge this factual finding
on appeal and does not rely on Karam’s nervousness to support reasonable
suspicion.

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Karam knew her address. Again, Karam was unable to provide an address or to

provide much detail regarding the location of his niece’s residence. At this point,

Scimone asked Karam for consent to search his vehicle and Karam refused.

Scimone then told Karam he w as not free to leave and informed him he was going

to call a canine unit to sniff the vehicle. Scimone requested a drug detection

canine unit be brought to the location of the stop. W hen the unit arrived, the

canine alerted the officers to the presence of controlled substances. The officers

conducted a search of the van and found approximately 264 pounds of marijuana.

Karam was indicted on one count of possession with intent to distribute

more than 100 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(B). Karam filed a motion to suppress all evidence seized as a result of the

search of his vehicle. In the motion, Karam argued, inter alia, that he was

unlawfully detained in violation of the Fourth Amendment. The district court

held an evidentiary hearing and ultimately denied the motion, concluding

Scimone had reasonable suspicion Karam was engaged in criminal activity

sufficient to justify the continued detention while awaiting the arrival of the

canine unit. After the denial of the motion to suppress, Karam entered a

conditional guilty plea pursuant to a written plea agreement w ith the government.

In exchange for the guilty plea, the government agreed to recommend a three-

level sentence reduction for acceptance of responsibility.

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 The Presentence Report (“PSR”) recommended the application of the career

offender sentencing guideline pursuant to USSG § 4B1.1(a). It based this

recommendation on a conclusion that two of Karam’s prior convictions, a 1995

Ohio conviction for trafficking in marijuana and a 1998 Ohio conviction for

trafficking in marijuana and conspiracy to comm it trafficking in marijuana,

qualified as controlled substance offenses, as defined by USSG § 4B1.2(b). The

PSR calculated K aram’s total offense level as thirty-one, applying a base offense

level of thirty-four under U SSG § 4B1.1(b) and a three-level downward

adjustment for acceptance of responsibility under USSG § 3E1.1. W hen coupled

with a criminal history category of V I, this offense level resulted in an advisory

guideline range of 188 to 235 months.

Karam objected to the application of § 4B1.1 and filed a sentencing

memorandum. Karam argued it was improper to classify his 1995 Ohio

conviction as a controlled substance offense because it did not necessarily involve

the actual distribution of a controlled substance or the possession of a controlled

substance w ith intent to distribute. At the sentencing hearing, the district court

rejected Karam’s arguments and concluded Karam qualified as a career offender.

It then granted Karam a six-level downward departure pursuant to USSG § 5K1.1,

based on Karam’s assistance to the government in the investigation and

prosecution of others. The district court calculated Karam’s total offense level as

twenty-five and his criminal history category as V I, resulting in an advisory

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guideline range of 110 to 137 months’ imprisonment. The district court sentenced

Karam to 110 months’ imprisonment, a sentence at the bottom of the guideline

range.

III. Analysis

A. M otion to Suppress

In reviewing a district court’s denial of a motion to suppress, this court

views the evidence in the light most favorable to the government and accepts the

factual findings of the district court unless they are clearly erroneous. United

States v. Chavira, 467 F.3d 1286, 1290 (10th Cir. 2006). The ultimate

determination of reasonableness under the Fourth A mendment, however, is a

question of law that is reviewed de novo. Id.

Although a traffic stop is considered a seizure for purposes of the Fourth

Amendment, it constitutes an investigative detention rather than a custodial arrest.

United States v. Wood, 106 F.3d 942, 945 (10th Cir. 1997). The reasonableness

of such a stop is therefore determined under the two-part inquiry established in

Terry v. Ohio, 392 U.S. 1, 19-20 (1968). Id. Under this inquiry, a traffic stop is

reasonable if it is (1) “justified at its inception” and (2) “reasonably related in

scope to the circumstances which justified the interference in the first place.”

United States v. Salzano, 158 F.3d 1107, 1111 (10th Cir. 1998) (quotations

omitted).

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 “A seizure that is justified solely by the interest in issuing a warning ticket

to the driver can become unlaw ful if it is prolonged beyond the time reasonably

required to complete that mission.” Illinois v. Caballes, 543 U.S. 405, 407

(2005). During a routine traffic stop, an officer may request a driver’s license

and vehicle registration, run a computer verification of these documents and issue

a citation or w arning. United States v. Rosborough, 366 F.3d 1145, 1148 (10th

Cir. 2004). An officer can also ask the driver questions about matters both

related and unrelated to the purpose of the stop, as long as those questions do not

prolong the length of the detention. United States v. Stewart, 473 F.3d 1265,

1269 (10th Cir. 2007). Once the warning or citation has been issued and the

driver’s license and registration have been returned, however, the officer

generally must allow the driver to proceed without further delay. United States v.

Patterson, 472 F.3d 767, 776 (10th Cir. 2006). Further detention is permissible

only if “(1) the officer develops an objectively reasonable and articulable

suspicion that the driver is engaged in some illegal activity, or (2) the initial

detention becomes a consensual encounter.” Rosborough, 366 F.3d at 1148

(quotations and alterations omitted).

Karam does not challenge the validity of the initial traffic stop. Scimone

observed Karam following another vehicle too closely in violation of W yo. Stat.

Ann. § 31-5-210. The stop was therefore “justified at its inception.” See United

States v. William s, 403 F.3d 1203, 1206 (10th Cir. 2005) (“A traffic stop is valid

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under the Fourth Amendment if the stop is based on an observed traffic violation .

. . .” (quotation omitted)). Karam also does not challenge the scope of the initial

detention or the questioning that occurred before Scimone asked for consent to

search his vehicle. Rather, Karam asserts only that the continued detention

pending the arrival of the canine unit, after the citation had been issued and his

license and registration had been returned, constituted an unreasonable seizure in

violation of the Fourth Amendment. Because the government does not argue this

continued detention was consensual, its validity turns on whether Scimone

possessed an “objectively reasonable and articulable suspicion” of criminal

activity sufficient to justify detaining Karam after the purpose of the traffic stop

had been completed. 2 Rosborough, 366 F.3d at 1148 (quotation omitted).

In concluding Scimone had reasonable suspicion to detain Karam, the

district court relied on the following factors: (1) the presence of professionally

packaged cardboard boxes similar to those used to transport marijuana in another

case; (2) the small size of Karam’s luggage which Scimone believed to be

insufficient for a one-and-one-half-week trip; (3) Karam’s eastbound travel from

Los Angeles, a drug source area, to Ohio, a market area; (4) Karam’s vague

2
Karam also mentions in a footnote that the fifty-eight-minute delay
pending the arrival of the canine unit exceeded the scope of an investigative
detention and therefore required more than reasonable suspicion. At the
suppression hearing, however, Karam expressly stated he was not challenging the
length of the delay. Because Karam does not fully address this issue on appeal
other than to summarily “assert[] and preserve[] that this lengthy delay is plain
error under the Fourth Amendment,” this court need not consider the issue.

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responses to questions regarding his travel plans, the location of his niece’s

residence in Los Angeles, and the content of the boxes; (5) Karam’s statement

about having to use the restroom despite having just passed an exit with restroom

facilities and his follow -up statement which Scimone interpreted as a false

assertion that he had stopped at the exit; and (6) Karam’s “unusual travel plans”

of flying to Los A ngeles and renting a vehicle to drive back to Ohio. On appeal,

Karam argues these factors are insufficient to give rise to the reasonable suspicion

necessary to justify his continued detention.

To determine whether an investigatory stop is supported by reasonable

suspicion, this court “must look at the totality of the circumstances of each case

to see whether the detaining officer has a particularized and objective basis for

suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002)

(quotations omitted). Thus, although this court discusses each of these factors

individually, the ultimate question is “whether, taken as a whole, they support a

finding of reasonable suspicion.” United States v. Santos, 403 F.3d 1120, 1127

(10th Cir. 2005). W hile reasonable suspicion may not be based on a “mere

hunch,” “the likelihood of criminal activity need not rise to the level required for

probable cause, and it falls considerably short of satisfying a preponderance of

the evidence standard.” Arvizu, 534 U.S. at 274 (quotation omitted). Further, this

court must “defer to the ability of a trained law enforcement officer to distinguish

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between innocent and suspicious actions.” Santos, 403 F.3d at 1124 (quotation

omitted).

As an initial matter, this court discounts three of the factors relied on by

the government and the district court to support the conclusion that reasonable

suspicion was present. First, the government relies heavily on the presence of the

neatly packaged cardboard boxes in the back of Karam’s vehicle. Scimone

testified at the suppression hearing that these boxes were significant because he

was aware of another case in which a trooper found marijuana packaged in new

cardboard boxes neatly stacked along the bottom of a van. The district court

expressed its familiarity with the prior case and concluded the presence of these

boxes w as a significant factor in the reasonable suspicion analysis.

Although this court is mindful that “officers often possess expertise

permitting them to understand the criminal connotations associated with facts that

may seem innocent to the untrained,” Santos, 403 F.3d at 1133, the government

has not provided any objective basis for associating these boxes or this style of

packaging with criminal activity. To the extent Scimone’s suspicion of the boxes

was based on a single anecdote regarding a drug stop made by another W yoming

trooper, his suspicion was w holly subjective and thus irrelevant to the reasonable

suspicion calculus. Neither the government nor the district court has provided

anything other than this single instance to support Scimone’s association of the

boxes with criminal activity. Cf. Arvizu, 534 U.S. at 277 (2002) (discussing

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officer’s “specialized training and familiarity with the customs of the area’s

inhabitants”). Absent any objective justification for such an association, the

presence of neatly packaged cardboard boxes in the back of a vehicle is one of

those circumstances so “incorrigibly free of associations with criminal activity”

that “[d]eference to law enforcement officers [is] inappropriate.” Santos, 403

F.3d at 1133. Thus, in the context of this case, even when viewed in combination

with the other factors discussed below, the presence of new, neatly taped boxes in

a vehicle contributes nothing to the reasonable suspicion analysis.

This court also attaches little significance to either the size of the luggage

in Karam’s vehicle or Karam’s eastbound travel from a well-known drug source

area to a large market area. The government does not argue either of these factors

would alone give rise to reasonable suspicion or even that either is a particularly

strong factor, but it nevertheless relies on each as a part of the overall

circumstances creating reasonable suspicion. W hile this court recognizes even

seemingly innocent factors may be relevant to the reasonable suspicion

determination, “some facts are so innocuous and so susceptible to varying

interpretations that they carry little or no weight.” United States v. M endez, 118

F.3d 1426, 1431 (10th Cir. 1997) (quotation omitted). Each of these facts falls

squarely within this category. Although this court has previously considered an

insufficient amount of luggage as a relevant factor, e.g., United States v.

Ledesm a, 447 F.3d 1307, 1318 (10th Cir. 2006), Karam’s suitcase was not so

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small as to contribute significantly to reasonable suspicion. Because there are

many reasons a person may choose to travel lightly, the size of the luggage in

Karam’s vehicle must be given only the slightest weight, if any. See Reid v.

Georgia, 448 U .S. 438, 441 (1980) (characterizing a lack of luggage as a

circumstance that could “describe a very large category of presumably innocent

travelers”). Similarly, this court has discounted the significance of travel between

a drug source location and a drug destination, explaining “[i]f travel between tw o

of this country’s largest population centers is a ground on which reasonable

suspicion may be predicated, it is difficult to imagine an activity incapable of

justifying police suspicion and an accompanying investigative detention.” Santos,

403 F.3d at 1132.

Notwithstanding the limited significance of three of the factors relied on by

the district court, the circumstances view ed in their entirety were sufficient to

support a conclusion of reasonable suspicion. Immediately after Karam got in

Scimone’s patrol car, he stated he had to use the restroom and, according to

Scimone, then explained he had stopped at the last exit to get some tea. Scimone

testified this statement was suspicious because Scimone had been following

Karam when he passed the last exit and knew Karam did not stop there. In its

denial of the motion to suppress, the district court did not make a finding as to

whether Karam falsely claimed to have stopped at the prior exit, noting the

recording of the traffic stop was unclear on this matter. Instead, the district court

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found only that Scimone believed Karam made such a statement and that Scimone

knew such a statement was false.

Contrary to Karam’s assertions, the significance of Karam’s statement does

not turn on whether he actually claimed to have stopped at the prior exit. Even

assuming Scimone was mistaken about Karam’s statement, it is well established

that “an officer’s mistake of fact may support probable cause or reasonable

suspicion . . . provided the officer’s mistake of fact was objectively reasonable.”

United States v. Herrera, 444 F.3d 1238, 1246 (10th Cir. 2006) (quotation

omitted). Here, the district court made an express factual finding, which is

supported by the record, that Scimone understood Karam to falsely claim he had

stopped at the previous exit. Implicit in this finding and the district court’s

reliance on it as a factor contributing to reasonable suspicion was the conclusion

that Scimone’s interpretation of the statement was reasonable. Viewing the

evidence in the light most favorable to the government, this court agrees with the

district court that, even if Scimone was mistaken, it was objectively reasonable

for him to believe Karam said he stopped at the last exit. Thus, view ing the facts

as Scimone reasonably perceived them to be, Karam’s statement certainly

contributes to an objectively reasonable and articulable suspicion necessary to

justify the prolonged detention. See U nited States v. Bradford, 423 F.3d 1149,

1157 (10th Cir. 2005) (listing “conflicting” answers to “basic questions” as one

factor); Wood, 106 F.3d at 947 (explaining “inconsistencies in information

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provided to the officer during the traffic stop may give rise to reasonable

suspicion of criminal activity”); cf. Santos, 403 F.3d at 1132 (concluding false

denial of criminal history was “the most powerful reason . . . for sustaining the

finding of reasonable suspicion.”).

The government next relies on Karam’s vague responses to questions

regarding his travel history and the content of the cardboard boxes in his vehicle.

Specifically, the government points out that Karam w as unable to remember

precisely where his niece lived in Los Angeles, first stating he did not know

where she lived and then explaining only that she lived approximately forty-five

minutes from the Beverly Center. Similarly, when asked what items he was

bringing back to A kron, Karam first said “just clothes” and then said “just

pictures and stuff like that.” A lthough Karam disputes the district court’s

characterization of his answers as “vague,” there is ample support in the record

for the district court’s determination that Karam gave vague responses to

Scimone’s questions. Indeed, the recording of the stop confirms Karam was less

than clear when answering Scimone’s questions about his travel plans, where he

had stayed in Los A ngeles, and the content of the boxes. Vague conversation is

not alone indicative of wrongdoing and this kind of conversation does not weigh

very heavily in the reasonable suspicion calculus. Id. at 1131, 1133.

Nevertheless, “[c]onfusion about details is often an indication that a story is being

fabricated on the spot,” and vague and evasive answ ers m ay be considered, in

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conjunction with other factors, as contributing to an officer’s determination of

reasonable suspicion. Id. at 1131.

Finally, the government relies on Karam’s unusual travel plans, which

involved flying one-way from Akron to Los A ngeles and then renting a vehicle

one-way to drive back to Akron. This court’s precedent regarding the

significance of such travel plans is less than clear. W hile “unusual travel plans

may provide an indicia of reasonable suspicion,” this court has previously

explained the combination of a one-way flight in one direction and a one-way

rental vehicle in the other direction is not the type of unusual itinerary that gives

rise to reasonable suspicion. Wood, 106 F.3d at 946-47. In a more recent case,

however, this court concluded the purchase of “a series of one-way plane tickets

and one-way car-rentals” was “financial[ly] illogic[al]” and “defied common

sense” and therefore was a factor contributing to reasonable suspicion. Bradford,

423 F.3d at 1157-58. Because the travel plans described by Karam w ere not

implausible and were consistent with innocent behavior, this court places little

weight on this factor. The Supreme Court has nevertheless cautioned that a factor

may not be completely ignored simply because it is “susceptible of innocent

explanation.” Arvizu, 534 U.S. at 276-77. Thus, although the purported itinerary

in this case was not so unusual or implausible as to independently suggest

criminal activity, the uncommon nature of the travel plans, when combined with

the other factors, may not be discounted entirely.

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 None of the factors relied on by the district court or the government would

alone be sufficient to justify the prolonged detention. Indeed, the government

concedes that when viewed independently, each of the factors is insufficient.

This court may not, however, engage in a “divide-and-conquer analysis,”

evaluating and disposing of each factor individually. Id. at 274. Rather, this

court “must consider the factors as a whole, giving due weight to the reasonable

inferences of the resident district court and to [the officer’s] expertise.” Santos,

403 F.3d at 1133. Even factors which are not alone probative of illegal conduct

may combine to amount to reasonable suspicion. See Arvizu, 534 U.S. at 277-78.

Applying this standard, this court concludes the totality of the

circumstances gave Scimone a particularized and objective basis for suspecting

Karam w as engaged in criminal activity. Upon stopping Karam, Scimone noted

the vehicle was a one-way rental traveling from Los Angeles to Akron. Karam

later offered as an explanation for the one-way rental that he had flown to Los

Angeles for a week-and-a-half vacation and then rented a vehicle to drive home

so he could transport his niece’s clothes and pictures. After entering Scimone’s

vehicle, Karam told Scimone he needed to use the restroom despite having just

passed a truck stop and then made a statement which Scimone reasonably

interpreted as a lie. Scimone then asked Karam questions about his vacation to

which Karam responded only with vague answ ers. K aram not only was unable to

remember the address where he had stayed in Los Angeles, but was unable to give

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much detail about his location, responding at one point by saying he did not know

where he had been staying. Karam also gave vague responses to Scimone’s

questions about the contents of the boxes in the back of his vehicle. Viewing

these circumstances in the aggregate and giving due deference to the experience

of the officer, Scimone had reasonable suspicion to justify detaining Karam

pending the arrival of the canine unit. The district court therefore properly denied

the motion to suppress.

B. Application of Career O ffender Sentencing Guideline

Karam next argues the district court erred in applying the career offender

sentencing guideline to calculate his advisory sentencing range. See USSG §

4B1.1. “[I]n considering the district court’s application of the Guidelines, we

review factual findings for clear error and legal determinations de novo.” United

States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). “W hether a defendant was

erroneously classified as a career offender is a question of law subject to de novo

review.” United States v. M itchell, 113 F.3d 1528, 1532 (10th Cir. 1997).

Because this court concludes Karam’s prior conviction was properly classified as

a controlled substance offense pursuant to USSG § 4B1.2(b), the district court

properly applied the career offender sentencing guideline.

Pursuant to USSG § 4B1.1(a), a defendant qualifies as a career offender if:

(1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a crime of violence or

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 a controlled substance offense; and (3) the defendant has at least two
prior felony convictions of either a crime of violence or a controlled
substance offense.

USSG § 4B1.1(a). Karam does not dispute that he satisfies the first two criteria

of the career offender guideline. Instead, he argues the district court improperly

classified his 1995 Ohio conviction for trafficking in marijuana as a controlled

substance offense. A controlled substance offense is “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.” Id. § 4B1.2(b).

The application note explains this definition also includes the offenses of aiding

and abetting, conspiring, and attempting to commit a controlled substance

offense. Id. § 4B1.2 cmt. n.1. Further, this court has held § 4B1.2(b)

encompasses “convictions for conduct that could have been charged as a

controlled substance offense,” even if the actual charged offense would not

necessarily satisfy the definition. United States v. Smith, 433 F.3d 714, 717 (10th

Cir. 2006).

To determine whether a prior conviction qualifies as a predicate offense for

purposes of a sentencing enhancement, this court must look initially “to the fact

of conviction and the statutory definition of the prior offense.” Taylor v. United

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States, 495 U.S. 575, 602 (1990). In the context of a guilty plea, where the

statutory language is not conclusive, this court may look beyond the express

language of the statute to the terms of the charging document, the terms of a

written plea agreement, a transcript of the plea colloquy, and other explicit factual

findings assented to by the defendant. Shepard v. United States, 544 U.S. 13, 16

(2005); Smith, 433 F.3d at 718. Although Taylor and Shepard each addressed the

classification of a prior conviction for purposes of the Armed Career Criminal

Act, their approach is equally applicable in the context of the career offender

sentencing guideline. See Smith, 433 F.3d at 718 (applying Shepard to determine

whether prior offense qualified as a controlled substance offense); see also United

States v. Galloway, 439 F.3d 320, 323-24 (6th Cir. 2006) (concluding Shepard

applies to determine whether prior conviction qualifies as a controlled substance

offense under § 4B1.1); United States v. M cGee, 408 F.3d 966, 988 (7th Cir.

2005) (explaining Shepard “applies with equal force to the guidelines’ career

offender provision”).

The Ohio statute under which Karam was previously convicted makes it

unlawful to “knowingly . . . [p]repare for shipment, ship, transport, deliver,

prepare for distribution, or distribute a controlled substance, when the offender

knows or has reasonable cause to believe the controlled substance is intended for

sale or resale by the offender or another.” Ohio Rev. Code Ann. § 2925.03(A)(2)

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(1995). 3 Karam argues a conviction under this statute cannot categorically

qualify as a controlled substance offense because the statute prohibits both

qualifying and non-qualifying conduct. Specifically, Karam contends preparing

for shipment, shipping, and transporting drugs all may involve mere possession

and, thus, the statute may be violated by the possession of a controlled substance

with reasonable cause to believe the drugs are intended for sale. H e argues this

“reasonable cause to believe” mens rea standard falls short of intent and is

insufficient to satisfy the definition of a controlled substance offense, which

requires, inter alia, possession with intent to distribute. USSG § 4B1.2(b).

There can be no dispute that a conviction for the delivery or distribution of

a controlled substance constitutes a controlled substance offense. See id. (“The

term ‘controlled substance offense’ means an offense . . . that prohibits the . . .

distribution . . . of a controlled substance . . . .”); United States v. Cherry, 433

F.3d 698, 702 (10th Cir. 2005) (“[T]he term ‘distribute’ . . . means to

intentionally deliver narcotics to another person.” (quotation and alterations

omitted)). Nor can there be any dispute that (1) the preparation of a controlled

substance for distribution and (2) the commission of any of the prohibited acts

with drugs intended for sale by the defendant each involve possession with intent

to distribute and also fit squarely within the definition of a controlled substance

3
All references to Ohio Rev. Code Ann. § 2925.03 are to the version of the
statute in effect at the time of Karam’s prior conviction in 1995.

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offense. See USSG § 4B1.2(b). Thus, the resolution of Karam’s appeal turns on

whether the preparation for shipment, shipment, or transport of a controlled

substance with knowledge or reasonable cause to believe the controlled substance

is intended for sale by another constitutes 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.” 4 Id. Because each of these prohibited acts involves the actual

distribution of a controlled substance rather than mere possession, this court need

not address whether knowledge or reasonable cause to believe the controlled

substance is intended for sale by another is equivalent to an intent to distribute.

W hile the relevant portion of the Ohio statute prohibits conduct which

alone may consist of no more than mere possession, it does so only “when the

offender knows or has reasonable cause to believe the controlled substance is

intended for sale or resale by . . . another.” Ohio Rev. Code Ann. §

2925.03(A)(2). This language makes clear that the statute prohibits only acts of

distribution and does not extend to the possession of drugs for personal use. If an

4
In Karam’s sentencing memorandum filed in the district court, he argued
his 1995 conviction was not punishable by imprisonment for a term exceeding one
year. At the sentencing hearing, however, he withdrew this objection and
conceded the conviction carried a possible penalty of up to eighteen months’
imprisonment. See Ohio Rev. Code Ann. § 2925.03(E)(2) (classifying a
conviction under subsection (A)(2) for trafficking in marijuana as a felony of the
fourth degree); id. § 2929.11(D)(2) (1995) (“For a felony of the fourth degree, the
term shall be six months, one year, or eighteen months.”).

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individual has knowledge or reasonable cause to believe drugs are intended for

sale by another, the preparation for shipment, shipment, or transport of those

drugs cannot simply involve the possessory act of one person moving his own

drugs, as Karam asserts. Rather, each of these acts is an integral part of the

distribution process and is therefore an act of distribution in and of itself. Simply

because the Ohio statute prohibits each of the various phases of the distribution

process does not make any one of these intervening acts any less an act of

distribution than the final step in the process. Additionally, the intended sale of

the controlled substance by a third party necessarily requires the distribution of

the controlled substance to that third party. There is, therefore, no way for a

defendant to violate the Ohio statute without engaging in conduct which meets the

definition of a controlled substance offense under U SSG § 4B1.2(b).

The Sixth Circuit reached an opposite conclusion with respect to Ohio Rev.

Code Ann. § 2925.03(A)(2) in United States v. M ontanez. 442 F.3d 485, 493 (6th

Cir. 2006). The central holding of M ontanez addressed only Ohio Rev. Code

Ann. § 2925.03(A)(6), which prohibited “possess[ing] a controlled substance in

an amount equal to or exceeding three times the bulk amount,” and §

2925.03(A)(9), which prohibited “possess[ing] a controlled substance in an

amount equal to or exceeding one hundred times the bulk amount.” Id. at 491-92

(quotations and alterations omitted). The court held that because each of these

sections “contains only the element of ‘possession,’” neither could qualify as a

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controlled substance offense for purposes of USSG § 4B1.1. Id. at 492. In dicta,

however, the court distinguished Ohio Rev. Code. Ann. § 2925.03(A)(2), which it

characterized as covering both qualifying and non-qualifying conduct. Id. at 493.

The court did not specify which portion of the statute it determined would not

satisfy the definition of a controlled substance offense, but it appears the court

was primarily focused on the distinction between “reasonable cause to believe”

and intent to distribute, a distinction this court need not address in light of our

conclusion that the prohibited conduct constitutes actual distribution. See id. at

493. To the extent M ontanez can be read for the proposition that transporting or

shipping a controlled substance with knowledge or reasonable cause to believe the

controlled substance is intended for sale does not qualify as an act of distribution,

this court disagrees with the Sixth Circuit dicta for the reasons discussed above.

Karam’s reliance on this court’s holding in United States v. Herrera-

Roldan is also misplaced. 414 F.3d 1238 (10th Cir. 2005). In Herrera-Roldan,

this court concluded the defendant’s Texas conviction for mere possession was

not a “drug trafficking offense,” a term with a definition nearly identical to that

of “controlled substance offense.” Id. at 1240; USSG § 2L1.2 cmt. n.1(B)(iv)

(defining “drug trafficking offense”). This court declined to infer an intent to

distribute from the defendant’s possession of more than fifty pounds, but not

more than 2000 pounds, of marijuana. Id. at 1240-41. Unlike Herrera-Roldan,

however, the statute under which Karam w as previously convicted does not

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prohibit mere possession. Rather, as discussed above, the express language of the

statute prohibits only the actual distribution of a controlled substance or the

possession of a controlled substance with intent to distribute. This court need not

look beyond the language of the statute.

Because the statutory language of Karam’s prior offense of conviction

prohibits only conduct which is the “distribution . . . of a controlled substance . . .

or the possession of a controlled substance . . . with intent to . . . distribute,” the

prior conviction categorically qualifies as a controlled substance offense. USSG

§ 4B1.2(b). The district court therefore did not err in applying the career offender

guideline.

IV. Conclusion

For the foregoing reasons, this court affirms the denial of Karam’s motion

to suppress and the sentence imposed by the district court.

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United States v. Karam, No. 06-8056.

M cCO NNELL, J., dissenting in part.

The Fourth Amendment question in this case is close and reasonable minds

may differ. On balance, in my view, the officer lacked the objective and

reasonable suspicion necessary to justify the detention. I therefore dissent from

that holding of the majority. I concur in the majority’s holding on the sentencing

issue.