United States Court of Appeals
For the First Circuit
Nos. 16-2059, 16-2060
UNITED STATES OF AMERICA,
Appellee,
v.
KARIM DAVIS, a/k/a/ Wise,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Stahl, and Thompson,
Circuit Judges.
J. Hilary Billings, Assistant Federal Defender, on brief for
appellant.
Renée M. Bunker, Assistant United States Attorney, and
Richard W. Murphy, Acting United States Attorney, on brief for
appellee.
October 11, 2017
LYNCH, Circuit Judge. Karim Davis challenges his
151-month prison sentence on appeal, after he pled guilty in 2016
to drug crimes, arguing that the district court erred in (1)
sentencing him as a career offender based on his prior drug
convictions under N.Y. Penal Law §§ 110 and 220.31; and (2)
applying the criminal-livelihood enhancement under U.S.S.G.
§ 2D1.1(b)(15)(E). There was no error, and we affirm his sentence.
I.
After indictment in 2015, Karim Davis pled guilty in
August 2016 to two counts of drug trafficking: (1) possession with
intent to distribute heroin and cocaine base and (2) conspiracy to
possess with intent to distribute the same, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. The first count arose
from crimes alleged in Davis's 2015 indictment, and the second,
from an information the Government filed in 2016 based on Davis's
alleged conspiracy to distribute drugs from April 2014 to June
2015.
The Presentence Investigation Report (PSR) found Davis
responsible for 479 grams of heroin and 31.4 grams of cocaine base.
Under the Sentencing Guidelines, this merited a base offense level
of 26. The PSR recommended a two-level enhancement because the
offense was "part of a pattern of criminal conduct engaged in as
a livelihood," U.S.S.G. § 2D1.1(b)(15)(E); and an additional
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three-level increase for Davis's leadership role as a manager or
a supervisor, id. § 3B1.1(b). As a result, Davis's adjusted
offense level was 31.
However, the PSR indicated that the career-offender
guideline under U.S.S.G. § 4B1.1(b) governed Davis's total offense
level because he had "at least two prior felony convictions
of . . . a controlled substance offense." The report identified
his first predicate offense as a criminal sale of a controlled
substance, in violation of N.Y. Penal Law § 220.31, and his second
predicate offense as an attempted criminal sale of a controlled
substance, in violation of N.Y. Penal Law § 110.
Section 4B1.1(b) of the Guidelines states that "if the
offense level for a career offender from the table in this
subsection is greater than the offense level otherwise applicable,
the offense level from the table in this subsection shall apply."
It also mandates that "[a] career offender's criminal history
category in every case under this subsection shall be Category
VI."
For Davis's offense, the career-offender guideline
prescribed an offense level of 32. See U.S.S.G. § 4B1.1(b)(3).
Because this was higher than the offense level otherwise applicable
-- 31 -- Davis received an enhancement for being a career offender.
After a three-level reduction for acceptance of responsibility,
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the PSR recommended a total offense level of 29. Together with a
criminal history category of VI, the resulting Guidelines
Sentencing Range (GSR) was 151-188 months of imprisonment. See
U.S.S.G. ch. 5, pt. A, sentencing table.
At the sentencing hearing, the district court adopted
the PSR's recommendation over Davis's objections. The judge also
found that Davis qualified for the criminal-livelihood
enhancement, but emphasized that "the same guideline range would
occur regardless of what [he found] on that topic." Ultimately,
the district court sentenced Davis at the bottom of the GSR: 151
months of imprisonment.
II.
On appeal, Davis argues that his two prior drug
convictions under New York law do not constitute predicate offenses
under the Guidelines career-offender provision, U.S.S.G. § 4B1.1.
"Whether a prior conviction qualifies as a predicate offense under
U.S.S.G. § 4B1.1 is a question of law that we review de novo."
United States v. Almenas, 553 F.3d 27, 31 (1st Cir. 2009).
Davis's first argument, that his conviction under N.Y.
Penal Law § 220.31 is not a "controlled substance offense" under
U.S.S.G. § 4B1.1, is foreclosed by this Court's precedent in United
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States v. Bryant, 571 F.3d 147 (1st Cir. 2009), and United States
v. Melvin, 628 F. App'x 774 (1st Cir. 2015).1
Under the career-offender provision, a "controlled
substance offense" includes any offense under state law that
"prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance," or "the possession of a
controlled substance" with "intent" to do the same. U.S.S.G.
§ 4B1.2(b). And under N.Y. Penal Law § 220.31, a person commits
a criminal sale in the fifth degree "when he knowingly and
unlawfully sells a controlled substance," which includes "to sell,
exchange, give or dispose of to another, or to offer or agree to
do the same," id. § 220.00 (emphasis added). We held in Bryant
that a conviction for attempted criminal sale of a controlled
substance under § 220.39, qualifies as a career offender
predicate.2 571 F.3d at 157-58; see also Melvin, 628 F. App'x at
776 n.3 & 777. The district court correctly concluded that Davis's
1 In fact, the defendant's own briefing concedes that
"controlling First Circuit precedent is contrary to [this]
assertion[]."
2 Although Bryant involved a different statutory
provision, the wording of N.Y. Penal Law § 220.39 (at issue in
Bryant) and that of § 220.31 (at issue here) are identical, with
the exception that § 220.39 specifies a list of prohibited
controlled substances. This listing has no impact on the
categorical analysis.
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conviction under N.Y. Penal Law § 220.31 qualifies as a predicate
for the career-offender enhancement.
Davis's second argument, that a conviction for attempted
criminal sale of a controlled substance under N.Y. Penal Law § 110
does not qualify as a predicate offense, is also meritless.
Section 110 provides that "[a] person is guilty of an attempt to
commit a crime when, with intent to commit a crime, he engages in
conduct which tends to effect the commission of such crime."
Although the statutory language is broad, New York courts have
narrowly applied it only to conduct that "came 'dangerously near'
commission of the completed crime." People v. Kassebaum, 744
N.E.2d 694, 698 (N.Y. 2001). This standard is more stringent than
the Model Penal Code's "'substantial step' test." People v.
Acosta, 609 N.E.2d 518, 521 (N.Y. 1993).
Davis contends that allowing a conviction under N.Y.
Penal Law § 110 to qualify as a predicate offense stretches the
Guidelines' definition of a "controlled substance offense" too far
because it would sweep in attempted "offers-to-sell."
Specifically, he argues that "because the categorical analysis
must focus upon the elements of the inchoate crime of attempt, and
not the elements of the substantive criminal sale of a controlled
substance," an attempted offer-to-sell under § 110 comprises acts
that fall outside the definition of attempted possession with
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intent to distribute under § 4B1.2(b). Davis asserts that to be
found guilty under § 110, the defendant need not even be in
possession of the controlled substance or have the ability to
proceed with the sale.
We disagree. Davis cites no authority for the
proposition that under the categorical approach, we are restricted
to examining elements of the inchoate crime, without reference to
the corollary substantive crime. In fact, our precedent is to the
contrary. See, e.g., United States v. Whindleton, 797 F.3d 105,
111 (1st Cir. 2015) ("[A]n offer to sell a controlled substance
-- like attempt to sell or a conspiracy to sell -- is necessarily
related to and connected with its ultimate goal, the distribution
of controlled substances." (emphasis added)).
"[I]t is well established under New York law" that
conviction for offer to sell requires "a bona fide offer to sell
-- i.e., that defendant had both the intent and ability to proceed
with the sale." Bryant, 571 F.3d at 158 (quoting People v.
Samuels, 780 N.E.2d 513, 515 (N.Y. 2002)). And in Bryant, we
expressly held that conviction for attempted criminal sale of a
controlled substance under § 220.39 -- which includes offers-to-
sell -- qualifies as a career-offender predicate. See id. at 157-
58. We find no meaningful difference between a conviction for
attempted sale of a controlled substance under that provision and
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one under N.Y. Penal Law § 110 for the purposes of the categorical
analysis.
That ends the matter. The district court correctly
sentenced Davis under the career-offender guideline.
III.
Davis also alleges that the district court erred in
finding that he qualified for the criminal-livelihood enhancement
under U.S.S.G. § 4B1.3. Not so.
Because the district court correctly sentenced Davis as
a career offender, the criminal-livelihood enhancement under
U.S.S.G. § 2D1.1(b)(15)(E) had no impact on his final sentence.
Irrespective of that enhancement, Davis is subject to the offense
level set forth in § 4B1.1(b)(3) -- 32 -- and its corresponding
GSR: 151-188 months of imprisonment. Any error, therefore, would
have been harmless. See United States v. Gordon, 852 F.3d 126,
134 (1st Cir. 2017) (finding affirmance proper where error is
harmless).
In any case, Davis's only rejoinder to the enhancement
-- that the district court did not consider the "costs of the
product sold or the amount of mark up the defendant, in fact,
received" -- is squarely foreclosed by our recent decision in
Gordon. There, we expressly held that district courts could "rely
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exclusively on evidence of [the defendant's] gross income in
applying § 4B1.3 app. n.2(A)." Id. at 131.
IV.
Accordingly, the district court's sentence is affirmed.
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