NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0110n.06
No. 17-5301
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Mar 02, 2018
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
BROC KALON WHITFIELD, ) DISTRICT OF KENTUCKY
)
Defendant-Appellant. ) OPINION
)
)
BEFORE: GILMAN, ROGERS, and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Broc Kalon Whitfield pled guilty to a single
count of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1). The district court
sentenced Whitfield as a career offender under the United States Sentencing Guidelines (USSG)
§ 4B1.1(b) based on two prior controlled substances convictions and imposed a sentence of 198
months of imprisonment followed by an eight-year term of supervised release. Whitfield appeals
his sentence, arguing that his designation as a career offender violates the Fourteenth
Amendment’s due process and equal protection provisions. We AFFIRM.
I. BACKGROUND
Between April 21 and June 24, 2016, confidential informants acting on behalf of the
Kentucky State Police purchased a total of 85.822 grams of crack cocaine from Whitfield. In
total, six controlled buys occurred, and the largest single transaction involved just over an ounce
No. 17-5301
United States v. Whitfield
of crack cocaine.1 As a result of these transactions, Whitfield was indicted on September 1,
2016, and charged with two counts of distributing crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1). Prior to sentencing, Whitfield submitted a pro se motion requesting the district
court “to consider a 1 to 1 crack to powder ratio.” In addition to Whitfield’s pro se motion,
defense counsel prepared a sentencing memorandum reiterating Whitfield’s arguments regarding
the crack-to-powder cocaine disparities and arguing that the relatively small quantities of drugs
involved in both the instant case and Whitfield’s prior offenses merited a downward variance.
At the sentencing hearing, Whitfield personally addressed the district court at length,
requesting the court to “waiver[ ] against applying the 4B1 career criminal enhancement or
depart downward for the category VI, final offense level 34.” Whitfield emphasized the
relatively small quantities of drugs involved in his offenses and implored the court to determine
that these circumstances warranted a downward departure. Defense counsel reiterated that the
drug transactions Whitfield had conducted involved small quantities and added that Whitfield
had a stable work history and sold drugs to pay for legal assistance in his battle to obtain
custody of his daughter and remove her from a dangerous situation.
The district court concluded that Whitfield was a career offender based on two prior
felony controlled substance offenses. In May 2011, Whitfield was found guilty of trafficking an
unspecified controlled substance in the second degree, in violation of Kentucky Revised Statutes
(Ky. Rev. Stat.) § 218A.1413, and sentenced to thirty months in prison. In January 2014,
Whitfield was sentenced to five years of imprisonment for trafficking cocaine in the first degree,
in violation of Ky. Rev. Stat. § 218A.1412. Id. Based on a total offense level of 34 and a
criminal history category of VI, Whitfield’s advisory Guidelines range was 262 to 327 months of
1
The transactions included: 3.428 grams sold on April 16, 2016; 2.211 grams sold on April 22, 2016; 3.304 grams
sold on May 4, 2016; 3.87 grams sold on May 9, 2016; 6.424 grams sold on June 9, 2016; 31.831 grams sold on
June 22, 2016; and 34.754 grams sold on June 24, 2016.
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United States v. Whitfield
imprisonment. The district court applied a downward variance and imposed a sentence of 198
months of imprisonment. Whitfield filed this timely appeal of his sentence.
II. ANALYSIS
A. Standard of Review
Whitfield raises constitutional due process and equal protection challenges to his
sentence. “While constitutional challenges are typically reviewed de novo, when the argument
was not raised at the district court[,] ‘Sixth Circuit precedent requires application of the plain
error standard.’” United States v. Dedman, 527 F.3d 577, 591 (6th Cir. 2008) (quoting United
States v. Barton, 455 F.3d 649, 652 (6th Cir. 2006)). Whitfield argues that by raising a pro se
general objection to his career offender designation, his constitutional challenges to his sentence
were adequately preserved, warranting de novo review. Even under the liberal pleading
standards afforded pro se litigants, Whitfield’s constitutional challenges to his sentence and
designation as a career offender were not sufficiently raised before the district court. See United
States v. Houston, 792 F.3d 663, 666–67 (6th Cir. 2015) (requiring adequate specificity to
objections from pro se litigants). Therefore, we review Whitfield’s argument that his sentence
violates constitutional due process and equal protection requirements for plain error.
Under plain-error review, “the burden is on the defendant to show (1) [an] error that
(2) was plain, (3) affected defendant’s substantial rights, and (4) seriously affected the fairness,
integrity, or public reputation of the judicial proceedings.” United States v. Ushery, 785 F.3d
210, 218 (6th Cir. 2015) (citing United States v. McCreary-Redd, 475 F.3d 718, 721 (6th Cir.
2007)).
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B. Constitutional Challenges
The gravamen of Whitfield’s argument is that because his prior conviction for trafficking
an unspecified amount of an unspecified substance would not constitute a § 4B1.1(b) qualifying
conviction in certain other states, his designation as a career offender violates the Constitution’s
equal protection and due process provisions. Whitfield reasons that had the identical trafficking
activity that led to his 2011 Kentucky conviction occurred across the state line in Ohio, the Ohio
drug offender would not have been convicted of a career criminal predicate offense. This is so
because in some states, such as Ohio, trafficking of smaller amounts of cocaine does not
constitute a felony offense carrying a term of imprisonment in excess of one year.2 Therefore, a
similarly situated Ohio defendant would not qualify as a career criminal, whereas Whitfield does,
despite engaging in identical conduct.
At the outset, we must clarify that Whitfield’s argument invoking the Fourteenth
Amendment’s due process and equal protection guarantees is instead properly grounded in the
Fifth Amendment, which is “applicable to the federal government.” United States v. Baker, 197
F.3d 211, 215 n.1 (6th Cir. 1999). Although the Fifth Amendment “does not explicitly guarantee
equal protection of the laws[,] . . . the United States Supreme Court has found that the Due
Process Clause of the Fifth Amendment encompasses an equal protection guarantee.” Id. (citing
Bolling v. Sharpe, 347 U.S. 497, 499 (1954)).
We have previously addressed Whitfield’s argument, albeit in an unpublished opinion.
See United States v. Smith, 681 F. App’x 483 (6th Cir. 2017). Smith held that “[t]he fact that
different states punish the possession of a certain amount of a controlled substance differently,
thus making the same conduct a predicate for a career-criminal enhancement for some
2
In Ohio, trafficking less than ten grams of cocaine is a fourth degree felony. Ohio Rev. Code § 2925.03(4)(c).
Pursuant to Ohio Rev. Code § 2929.13, non-violent first offenders convicted of fourth degree felonies shall be
sentenced to community corrections rather than imprisonment.
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United States v. Whitfield
defendants but not for others, does not give rise to a constitutional challenge to the Guidelines.”
Id. at 490 (citing United States v. Kubosh, 63 F.3d 404, 407 (5th Cir. 1995), vacated on other
grounds).
The reasoning in Smith is persuasive. Under our federal system, “the States possess
primary authority for defining and enforcing the criminal law.” United States v. Lopez, 514 U.S.
549, 561 n.3 (1995). In crafting the federal sentencing Guidelines and substantive federal
criminal laws, Congress was well aware of the significant variations that existed in state criminal
law. See Kubosh, 63 F.3d at 407 (“Congress was well aware that different states classify similar
crimes differently. Congress’ deference to the states in this matter is not irrational.”).
Whitfield has also failed to articulate how the decision of Congress to rely on the
definitions of criminal conduct in the various states to determine career offender designations
implicates a suspect class or a fundamental right. We thus examine Whitfield’s equal protection
argument under rational-basis review. Baker, 197 F.3d at 216. This level of review “is highly
deferential to Congress’s judgment in enacting a particular statute. To survive rational basis
review, a statute need only be rationally related to a legitimate governmental interest.” Id.
Reliance on the states’ definitions of criminal conduct is deeply rooted in our federal system, in
which “[t]he States possess primary authority for defining and enforcing the criminal law.”
Brecht v. Abrahamson, 507 U.S. 619, 635 (1993) (internal quotation marks and citations
omitted). Congressional deference to state definitions of criminal conduct, moreover, promotes
comity and principles of federalism. Whitfield has failed to carry his burden of demonstrating
that Congress’s deference to state definitions of criminal conduct bears no rational relationship to
a legitimate government interest. His due process and equal protection arguments are therefore
unavailing.
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C. Vagueness
Whitfield’s contention that his case raises an issue of “absolute vagueness” fares no
better. Whitfield argues that because one of his predicate offense convictions involves a
conviction that on its face neither specifies the quantity nor the controlled substance that was
trafficked, “one cannot really discern whether the offense involved a banned, controlled
substance in any jurisdiction, but for the fact that the only information in the notice of intent to
enhance and the [Presentence Investigative Report (PSR)] simply says so.”
The appropriate time to object to the factual basis of a PSR is before the district court,
prior to sentencing, which Whitfield failed to do. A “[d]efendant’s failure to raise any sort of
challenge in the proceedings below operates as an admission as to the drug types and quantities
set forth in the [PSR], and thereby provides the requisite factual basis to sustain” a defendant’s
conviction. United States v. Stafford, 258 F.3d 465, 476 (6th Cir. 2001). Under Federal Rule of
Criminal Procedure 32, the district court “may accept any undisputed portion of the presentence
report as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A). The district court’s obligation to make
factual findings under the preponderance of the evidence standard is triggered only when the
content of the PSR is disputed. Fed. R. Crim. P. 32(i)(3)(B); United States v. White, 492 F.3d
380, 415 (6th Cir. 2007) (“As a threshold matter, the defendant must actively raise the dispute
during the sentencing hearing before the district court’s duty to find facts arises.”). Because
Whitfield did not object to the PSR below, this obligation was not triggered, and the court
reasonably relied on the PSR.
Whitfield urges that his case is similar to United States v. Hernandez, 145 F.3d 1433
(11th Cir. 1998), in which the statute of conviction encompassed both purchase and sale of a
controlled substance, only the latter of which constitutes a controlled substance offense under the
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United States v. Whitfield
Guidelines. The Eleventh Circuit reversed the district court because the latter utilized the arrest
affidavits rather than conviction documents such as the plea agreement and plea transcripts to
evaluate the defendant’s conduct. Id. at 1440. Hernandez is distinguishable from this case
because Whitfield’s PSR unambiguously makes references to the transcript of the sentencing
proceedings to determine that Whitfield pled guilty to trafficking a Schedule II substance. In
short, the district court did not err in determining that Whitfield’s prior crimes constituted career
offender predicate offenses.
Whitfield was a small-time drug dealer. The largest single transaction underlying his
conviction was barely more than an ounce of crack cocaine. We cannot conclude, however, that
Whitfield’s criminal record did not qualify him as a career offender as a matter of law.
III. CONCLUSION
For the reasons stated above, we AFFIRM.
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