United States v. Peter Combs

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0002p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> Nos. 18-5676/6003
v. │
│
│
JANKIE JACKSON (18-5676); PETER COMBS (18-6003), │
Defendants-Appellants. │
┘

Appeal from the United States District Court
for the Eastern District of Kentucky at London.
No. 6:17-cr-00014—Gregory F. Van Tatenhove, District Judge.

Argued: October 6, 2020

Decided and Filed: January 5, 2021

Before: DAUGHTREY, DONALD, and READLER, Circuit Judges.

_________________

COUNSEL

ARGUED: Gregory C. Sassé, Mentor, Ohio, for Appellant in 18-5676. Thomas W. Kidd, Jr.,
KIDD & URLING LLC, West Chester, Ohio, for Appellant in 18-6003. Amanda B. Harris,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Gregory C. Sassé, Mentor, Ohio, for Appellant in 18-5676. Thomas W. Kidd, Jr.,
KIDD & URLING LLC, West Chester, Ohio, for Appellant in 18-6003. Amanda B. Harris,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Charles P. Wisdom, Jr.,
UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.
 Nos. 18-5676/6003 United States v. Jackson, et al. Page 2

_________________

OPINION
_________________

CHAD A. READLER, Circuit Judge. Jankie Jackson and Peter Combs pleaded guilty to
participating in a cocaine distribution ring. Both defendants received elevated sentences,
Jackson due to his role as a leader in the drug-distribution conspiracy, and Combs due to his
career-offender status. Seeing no error in the district court’s conclusions, we affirm defendants’
respective sentences.

BACKGROUND

Jankie Jackson ran a cocaine distribution ring with customers in central and eastern
Kentucky. Peter Combs joined Jackson’s operation. The ring was eventually foiled when DEA
agents and police made controlled purchases from Combs and other members of the ring and
later arrested those up the distribution chain, including Jackson. Officers found a storage unit
maintained by Jackson and an associate that contained a substantial amount of cocaine,
marijuana, and other drug paraphernalia. Officers also recovered hundreds of thousands of
dollars in cash from safety deposit boxes in Jackson’s name.

Jackson and Combs were each indicted on charges of conspiracy to distribute cocaine,
with Jackson receiving the additional charge of conspiracy to commit money laundering. Both
defendants entered into plea agreements, which preserved their ability to challenge aspects of
their respective sentences on appeal. Combs was sentenced to 188 months’ imprisonment and
six years supervised release, and Jackson was sentenced to 192 months’ imprisonment and ten
years supervised release.

While Combs’s appeal made its way to us on a traditional path, Jackson’s did not.
Despite his assurances to Jackson, Jackson’s appointed trial counsel did not file an appeal within
the required timeframe set by Federal Rule of Appellate Procedure 4(b). Nearly six months after
the district court entered judgment, Jackson wrote a letter to the district court explaining that he
wanted to appeal his sentence, and that the delay in doing so was attributable to his counsel.
Three days later, the district court received another letter from Jackson to the same effect.
 Nos. 18-5676/6003 United States v. Jackson, et al. Page 3

The district court construed Jackson’s initial letter as a pro se motion requesting leave to file a
late appeal, and his second as a direct notice of appeal, which served to transfer the case to the
Circuit. With the case now before us, we ordered Jackson to explain why his appeal should not
be dismissed as untimely, an outcome for which the government made an appearance to support.
Jackson again attributed the delay to his counsel’s error.

While these events were unfolding in our Court, Jackson’s request to file a late appeal
(as construed by the district court from Jackson’s initial letter) remained pending in the district
court. Once the government’s deadline to respond passed, the district court granted Jackson’s
unopposed request. The absence of the government’s opposition in the district court, we then
observed, raised the possibility that the government had waived the right to oppose Jackson’s
appeal as untimely in our Court. We left resolution of that question to this panel, in addition to
any merits issues raised by Jackson and Combs. The government in turn withdrew its opposition
to the timeliness of Jackson’s appeal.

With the stage now set, we raise the appellate curtain on this two-act proceeding, first
resolving Combs’s appeal, and then Jackson’s.

PETER COMBS’S APPEAL

Controlled Substance Offense. The district court determined that Combs was a “career
offender,” as that term is used in § 4B1.1 of the Sentencing Guidelines, which elevated Combs’s
sentence range from 37 to 46 months to 188 to 235 months. To qualify as a career offender
under the Sentencing Guidelines, Combs must have had two or more prior convictions for a
crime of violence or a controlled-substance offense. U.S.S.G. § 4B1.1. All agree that Combs
has at least one: he previously pleaded guilty in federal court to one count of Conspiracy to
Distribute a Schedule II Controlled Substance. At issue here is whether Combs’s prior state
felony offense of trafficking in the second degree, Ky. Rev. Stat. § 218A.1413, also qualifies as a
“controlled substance offense” under the Guidelines. The district court held that the offense did
so qualify, a decision we review de novo. United States v. Havis, 927 F.3d 382, 384 (6th Cir.)
(en banc), reconsideration denied, 929 F.3d 317 (6th Cir. 2019).
 Nos. 18-5676/6003 United States v. Jackson, et al. Page 4

In resolving whether Combs’s drug offense qualifies him for career-offender status, we
employ the now well-known, if not always well-loved, “categorical approach,” applicable in this
and other sentencing contexts. Cf. Quarles v. United States, 139 S. Ct. 1872, 1881 (2019)
(Thomas, J., concurring) (stating that “the categorical approach . . . is difficult to apply and can
yield dramatically different sentences depending on where [the crime] occurred”); Mathis v.
United States, 136 S. Ct. 2243, 2258 (2016) (Kennedy, J., concurring) (noting the “stark
illustration of the arbitrary and inequitable results produced by applying an elements based
approach” to sentencing enhancements and arguing that “Congress could not have intended vast
sentencing disparities for defendants convicted of identical criminal conduct in different
jurisdictions”); see United States v. Galloway, 439 F.3d 320, 323–24 (6th Cir. 2006) (holding
that, as relevant here, Armed Career Criminal Act decisions from the Supreme Court are “fully
applicable to Sentencing Guideline cases”). We begin with the Guidelines, which describe the
types of offenses that, for career-offender purposes, qualify as a “controlled substance offense”
at sentencing. See U.S.S.G. § 4B1.2(b). We then compare those generic offenses to the least
culpable elements of Combs’s state offense to determine if the latter exceeds the conduct
described in the Guidelines. Mathis, 136 S. Ct. at 2248. If Combs’s Kentucky offense is no
broader than the generic offenses, it qualifies as a “controlled substance offense.” If, on the
other hand, the state offense is broader than the generic offenses listed in the Guidelines,
we employ other tools to assess whether the state offense qualifies for purposes of the career-
offender enhancement. See id. at 2249 (explaining the “modified categorical approach”).

With this framework in mind, we turn to the conduct proscribed by the Sentencing
Guidelines. United States v. Garth, 965 F.3d 493, 495 (6th Cir. 2020). The Guidelines define a
“controlled substance offense” as any felony “that prohibits 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(b). Compare that to the relevant aspects of Combs’s
predicate offense. Garth, 965 F.3d at 495. Under Kentucky law, “[a] person is guilty of
trafficking in a controlled substance in the second degree when . . . [h]e or she knowingly and
unlawfully traffics in . . . [t]en (10) or more dosage units of a controlled substance classified in
Schedules I and II that is not a narcotic drug.” Ky. Rev. Stat. § 218A.1413. Kentucky law in
 Nos. 18-5676/6003 United States v. Jackson, et al. Page 5

turn defines “traffic” to mean “manufacture, distribute, dispense, sell, transfer, or possess with
intent to manufacture, distribute, dispense, or sell a controlled substance.” Id. § 218A.010(56).

Comparing the Guidelines definition of a “controlled substance offense” with Kentucky’s
“trafficking in a controlled substance” offense, we ask whether there is any daylight between the
two. Garth, 965 F.3d at 496. Combs believes there is, because the Guidelines do not include the
act of “transfer,” which Kentucky law defines as “to dispose of a controlled substance to another
person without consideration and not in furtherance of commercial distribution.” Ky. Rev. Stat.
§ 218A.010(57). At first blush, that argument has some appeal. But Combs fails to consider that
the Guidelines draw their definitions from the Controlled Substances Act, which paints a more
complete picture of a “controlled substance offense.” See 28 U.S.C. § 994(h)(2)(B)
(“The Commission shall assure that the guidelines specify a sentence to a term of imprisonment
at or near the maximum term authorized for categories of defendants in which the defendant is
eighteen years old or older and . . . has previously been convicted of two or more prior felonies,
each of which is . . . an offense described in section 401 of the Controlled Substances Act
(21 U.S.C. 841) . . . .” (emphasis added)). Included in the generic offenses listed in the
Guidelines is possessing a controlled substance with the intent to “distribute” the substance.
U.S.S.G. § 4B1.2(b). Adding meat to that proverbial bone, the CSA defines “distribute” to mean
to “deliver . . . a controlled substance or a listed chemical.” 21 U.S.C. § 802(11). And
“deliver,” the CSA tells us, “mean[s] the actual, constructive, or attempted transfer of a
controlled substance or a listed chemical, whether or not there exists an agency relationship.” Id.
§ 802(8) (emphasis added). As this definitional chain reveals, one who transfers is guilty of
delivering, and one who delivers is guilty of distributing. It follows that the CSA includes
“transfer” to define “distribution,” meaning the generic offense in the Guidelines encompasses
the conduct of transfer. In other words, the Kentucky statute falls safely within the confines of
the generic offenses listed in the Guidelines. A transfer under Kentucky law is therefore a
controlled-substance offense under U.S.S.G. § 4B1.1(b).

Combs resists this conclusion in three respects. First, he argues that our en banc decision
in Havis prohibits reliance on definitions from the CSA. We disagree. By way of background,
the district court in Havis determined that the defendant qualified for career-offender status
 Nos. 18-5676/6003 United States v. Jackson, et al. Page 6

based in part upon a prior Tennessee conviction for violating a statute that prohibited the sale and
delivery of cocaine. Havis, 927 F.3d at 384. The parties there agreed that, under Tennessee law,
delivery included “attempted transfer” as the least culpable conduct. Id. Relying on the
commentary to the Guidelines, the district court held that the Guidelines generic definition of a
controlled substance offense also included attempt offenses. Id. at 384 (quoting U.S.S.G.
§ 4B1.2(b) cmt. n.1). By doing so, we observed, the district court impermissibly utilized the
commentary to expand the substantive offenses included in the Guidelines, even though
Congress was never presented with the commentary—unlike the Guidelines themselves, which
Congress had the opportunity to modify or reject each Guideline section before it took effect. Id.
at 387; Stinson v. United States, 508 U.S. 36, 44 (1993). And if the commentary cannot be used
to interpret the Guidelines, how, asks Combs, can a separate statute—the CSA—be used for the
same purpose? Because here, unlike in Havis, utilizing the CSA does not broaden the text of the
Guidelines. Congress enacted the CSA. 21 U.S.C. §§ 801–904. It then incorporated the
substantive offenses articulated in the CSA into the Guidelines through 28 U.S.C. § 994, which
outlines the “Duties of the [Sentencing] Commission.” See 28 U.S.C. § 994(h)(2)(B) (requiring
that career offender status result from “two or more prior felonies, each of which is . . . an
offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841) . . . .”). In
light of these legislative directives, we routinely utilize the CSA (even after Havis) in defining
the relevant conduct covered by the Guidelines. See Garth, 965 F.3d at 496 (citing 21 U.S.C. §§
802(8) and (11)) (relying on the CSA to define relevant federal conduct); United States v.
Thomas, 969 F.3d 583, 585 (6th Cir. 2020) (per curiam) (citing 21 U.S.C. §§ 802(8) and (11))
(same); see also United States v. Powell, --- F. App’x ---, No. 19-6461, 2020 WL 7054135, at *6
(6th Cir. Dec. 2, 2020) (citing 21 U.S.C. §§ 841(a)(1) and 802(8), (11)) (relying on the CSA to
define relevant federal conduct because “[t]he Guidelines . . . track[] the Federal Controlled
Substances Act”); United States v. Havis, 929 F.3d 317, 319 (6th Cir. 2019) (en banc) (Sutton, J.,
concurring in the denial of en banc reconsideration) (“Though [the Guidelines] do not define
distribution, I see no reason to give the word . . . a different meaning from the one in the
[CSA].”).

Second, Combs argues that the lack of commercial intent in the Kentucky statute makes it
broader than the generic definition. The least culpable conduct criminalized by Ky. Rev. Stat.
 Nos. 18-5676/6003 United States v. Jackson, et al. Page 7

§ 218A.1413, by way of “transfer,” is “disposing without consideration and not in furtherance of
commercial distribution.” Ky. Rev. Stat. § 218A.010(57). Combs asserts that the phrase
“without consideration and not in furtherance of commercial distribution” makes Kentucky’s
definition of transfer broader than the Guidelines generic offense, which Combs says includes
only those distributions or transfers that are commercial in nature. We have previously held,
however, that sharing a controlled substance without compensation satisfies the substantive
offense of 21 U.S.C. § 841(a)(1)—possession with intent to distribute. See United States v.
Layne, 192 F.3d 556, 569 (6th Cir.1999) (citing United States v. Washington, 41 F.3d 917, 920
(4th Cir. 1994), for the proposition that “a person who shares drugs with a friend possesses the
drug with an intent to distribute”). Because the Guidelines are interpreted against the backdrop
of the CSA, that same reading of the CSA applies in the sentencing context. Just recently, the
Eighth Circuit reached a similar conclusion in the context of what constitutes a “controlled
substance offense” for purposes of the § 4B1.2(b) sentencing enhancement. See United States v.
Clayborn, 951 F.3d 937, 940 (8th Cir.) (rejecting the argument that § 4B1.2 applies only to
commercial drug trafficking crimes), cert. denied, 141 S. Ct. 391 (U.S. Oct. 5, 2020). Citing
Black’s Law Dictionary’s definition of “distribute,” the Eighth Circuit held that “distribute” as
used in § 841 does not require a commercial element. Id. at 939 (explaining that distribute
means “to apportion; to divide among several; to arrange by class or order; to deliver, and to
spread out; to disperse” and concluding that “nothing in this ordinary definition requires a
‘commercial aspect.’” (cleaned up)). We agree, and thus reject Combs’s argument that
distribution requires a commercial aspect.

Finally, Combs argues that Kentucky’s definition of transfer, by its use of the word
“dispose,” covers conduct that falls outside the Sentencing Guidelines. According to Combs, a
person in Kentucky can be guilty of transferring (and thus trafficking) a controlled substance if
he innocently picks up and throws away drugs—in other words, if he takes steps to “dispose” of
them. But Combs’s argument is supported neither by the statute nor by case law. The Kentucky
statute has a mens rea requirement of “knowingly and unlawfully” conducting the crime in
question. Ky. Rev. Stat. § 218A.1413. One who innocently throws away drugs is thus unlikely
to be guilty of “knowingly and unlawfully” violating Kentucky law. See Ky. Rev. Stat.
§ 501.020(2) (“A person acts knowingly with respect to conduct or to a circumstance described
 Nos. 18-5676/6003 United States v. Jackson, et al. Page 8

by a statute defining an offense when he is aware that his conduct is of that nature or that the
circumstance exists.”). Tellingly, Combs has not identified a single case where one has been
prosecuted under the Kentucky statute because she innocently picked up and threw away drugs.
Combs thus fails to demonstrate a “realistic probability” that Kentucky law applies in the way he
suggests. Garth, 965 F.3d at 498 (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007)).

Because U.S.S.G. § 4B1.2 covers all the conduct under the Kentucky statute, Combs’s
Kentucky trafficking offense categorically qualifies as a “controlled substance offense” under the
Guidelines. Accordingly, the district court properly deemed Combs to be a career offender.

JANKIE JACKSON’S APPEAL

Rule 4(b). Turning to Jackson’s claims, we must first navigate the procedural maze
underlying his appeal. Ordinarily, a defendant can perfect a criminal appeal by filing a notice of
appeal within 14 days of the judgment. Fed. R. App. P. 4(b)(1)(A). The district court can extend
the filing period up to 30 days if it finds good cause or excusable neglect. Id. at 4(b)(4). Issues
regarding the timeliness of a defendant’s appeal are sometimes resolved by the district court, and
sometimes by the court of appeals. If the defendant files a motion for leave to file a late notice
of appeal with the district court, the district court customarily would resolve the timeliness
question in the first instance, should the government oppose the motion. On the other hand, if a
defendant files a notice of appeal, jurisdiction transfers to this Court. If the government believes
the defendant’s notice was untimely, it can oppose the appeal on timeliness grounds by motion,
or in a brief. See United States v. Gaytan-Garza, 652 F.3d 680, 681 (6th Cir. 2011). And if the
government is correct, we would be obliged to dismiss the appeal. Id.

Jackson’s appeal raises timeliness issues, but not in the typical fashion just described.
The district court construed Jackson’s initial letter (sent roughly six months after judgment) as a
request for leave to allow an appeal. And it treated a subsequent letter as Jackson filing an
appeal even before being granted permission. As a result, Jackson’s case was transferred to this
Court while his motion for leave was still pending with the district court. When the government
did not respond to the motion, the district court granted Jackson his requested relief. Yet the
 Nos. 18-5676/6003 United States v. Jackson, et al. Page 9

government did oppose in this Court Jackson’s appeal that emanated from his second letter to the
district court, only to drop that opposition later when the procedural aspects of the case became
thorny. All of this raises the question whether the government can in fact withdraw its
opposition to the appeal.

In this instance, we believe that it can. Unlike in civil appeals governed by the
jurisdictional requirements of Federal Rule of Appellate Procedure 4(a), Rule 4(b) is merely a
claims-processing rule established by the Supreme Court, not Congress. See Gaytan-Garza,
652 F.3d at 681 (“[A] jurisdictional time period is established by statute and . . . a time period
established only by a rule is merely a non-jurisdictional claim-processing rule.” (citing Bowles v.
Russell, 551 U.S. 205, 210–13 (2007)). As a result, “we are not required to dismiss late-filed
criminal appeals unless the government has raised the issue, which it can do by motion or in its
briefing.” Id. And while the government here initially did “raise[] the issue,” it later withdrew
its timeliness objection before any order was issued. Accordingly, we are not foreclosed from
honoring the government’s request.

That said, it bears reminding that we retain the power to dismiss an untimely appeal sua
sponte if the appeal “implicates the important judicial interests of finality of convictions and
efficient administration of claim processing.” Id. We did so in Gaytan-Garza, where the
defendant filed his appeal four years after the deadline. Id. Citing that decision, the D.C. Court
of Appeals recently dismissed sua sponte cases that were filed four and seven years late,
respectively. Deloatch v. Sessoms-Deloatch, 229 A.3d 486, 493 (D.C. 2020) (holding that
appellants were “on the Gaytan-Garza side of the ledger”). At the other end of the playing field,
the Tenth Circuit declined to dismiss sua sponte a criminal appeal filed just one day late. United
States v. Mitchell, 518 F.3d 740, 751 (10th Cir. 2008). Between these two yardsticks is
Jackson’s six-months-late appeal. In some circumstances, that amount of delay might be
considered enough to warrant dismissal, if it implicated important judicial interests. But those
concerns are not present here.

That leaves one other procedural housekeeping matter. As mentioned, the district court
granted Jackson leave to file a late notice of appeal, but did so only after Jackson had filed a
separate notice of appeal, which transferred jurisdiction to this Court. As a result of that
 Nos. 18-5676/6003 United States v. Jackson, et al. Page 10

transferal, the district court lacked jurisdiction to grant Jackson’s motion for leave. United States
v. Carman, 933 F.3d 614, 618 (6th Cir. 2019) (explaining that a notice of appeal “confers
jurisdiction on the court of appeals and divests the district court of its control over those aspects
of the case involved in the appeal” (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S.
56, 58 (1982)). We thus vacate that order.

Jackson’s Sentencing. Having navigated this procedural thicket, we turn to Jackson’s
challenges to his sentence. He first disputes the application of the four-level leader enhancement
under U.S.S.G. § 3B1.1(a). Before the district court, however, Jackson’s counsel indicated that
Jackson did not object to the enhancement because he “couldn’t have, in good faith, objected to
his leadership role.” That concession constitutes a procedural waiver. See United States v. Hall,
373 F. App’x 588, 591–92 (6th Cir. 2010) (“A defendant waives a known claim by “agree[ing]
in open court with a judge's proposed course of conduct.” (alteration in original) (citing United
States v. Aparco–Centeno, 280 F.3d 1084, 1088 (6th Cir. 2002))). And “[a]lthough we may
review forfeited claims, which . . . were raised for the first time on appeal, for plain error,
we may not review waived claims at all.” Id. (first citing United States v. Stines, 313 F.3d 912,
917–18 (6th Cir. 2002); then citing Aparco–Centeno, 280 F.3d at 1088). Even if the claim were
preserved, there were ample reasons for the leadership designation. Among them, Jackson
recruited and supervised participants, he held a substantial amount of the cash proceeds, and the
conspiracy involved seven individuals. See U.S.S.G. § 3B1.1 (requiring five or more
participants for the enhancement).

Jackson fares no better in challenging the mandatory-minimum 20-year sentence he
received in accordance with 21 U.S.C. § 841(b)(1)(A), due to his prior marijuana-trafficking
conviction. Here too, Jackson’s claim runs into procedural headwinds. His plea agreement
stated that he was eligible for the enhanced sentence based on a prior qualifying felony drug
conviction. And his counsel similarly stated that Jackson’s prior Kentucky marijuana offense
was a qualifying felony conviction, a prototypical example of a procedural waiver. Jackson’s
claim fails on the merits as well. At the time he was charged and sentenced, § 841(b)(1)(A)
provided for a 20-year mandatory-minimum sentence for offenses involving certain quantities of
drugs after a defendant had sustained “a prior conviction for a felony drug offense [that] has
 Nos. 18-5676/6003 United States v. Jackson, et al. Page 11

become final.” 21 U.S.C. §§ 802(44), 841(b)(1)(A). A qualifying felony includes a crime that
involves marijuana and is punishable by more than one year of imprisonment. 21 U.S.C.
§ 802(44). Jackson’s 1990 felony hit both marks—marijuana trafficking and a ten-year sentence.
There was thus no error in taking this felony into consideration when calculating Jackson’s
sentence.

* * * * *

Alternatively, Jackson asks that we construe his letters to the district court as a motion for
relief due to ineffective counsel under 28 U.S.C. § 2255. The district court, however, did not
interpret the letters that way and refrained from addressing the issue. Settled practice in our
Court foreclose Jackson’s request. We customarily do not address ineffective assistance of
counsel claims on direct appeal, especially when a defendant raises those claims “for the first
time” in this Court, as the record typically is not developed sufficiently to address such a claim.
See United States v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012). That is the case here, where
Jackson has almost no record on which to proceed. Jackson, of course, can raise those claims in
a future action if he so chooses.

CONCLUSION

For these reasons, we AFFIRM the district court’s judgment as to the issues raised by
Jackson and Combs, and we VACATE the district court’s order granting Jackson’s motion for
leave to file a late notice of appeal.