United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge
matter is before the Court on DEFENDANT TIMOTHY A. WARD'S
OBJECTION TO PRESENTENCE INVESTIGATION REPORT. Ward objects
to the application of U.S.S.G. § 4Bl.l(b), an
enhancement pursuant to the career-offender provision of the
Guidelines, in his Presentence Report
(“PSR"). Ward contends that two of his
prior Virginia drug convictions do not qualify as
"controlled substance offenses" under the
Guidelines, with the result that the provision cannot be
applied to enhance his Guidelines sentence. Specifically,
Ward alleges that the phrase "controlled substance"
used in the Guidelines refers only to substances on the
federal drug schedules, and he states that the Virginia
schedule includes one substance (out of over 100) not
included in the federal schedule. According to Ward, his two
prior convictions under Virginia law-both for possession of
heroin with intent to distribute-do not qualify as
"controlled substance" offenses under the
reasons set out below and on the record, the objection was
overruled during Ward's sentencing hearing.
confidential source purchased 0.1645 grains of cocaine from
Ward. Afterward, Ward was charged with knowingly,
intentionally, and unlawfully distributing a mixture and
substance containing a detectable amount of cocaine-a
Schedule II controlled substance- in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C).
was not Ward's first time distributing drugs. In 2001, he
was convicted in federal court of distributing 17.7 grams of
cocaine base, for which he served a sentence of 84 months
imprisonment. He was released in June 2008, but soon was back
in prison for violating his supervised release.
serving the sentence for violation of supervised release,
Ward was arrested for, and later convicted of, two counts of
possessing heroin with intent to distribute it-on two
different occasions-in violation of Va. Code § 18.2-248.
Specifically, Ward was first found with heroin early in the
morning on June 21, 2010, when officers arrested him outside
a club carrying 6 grams of the substance. Then, on August 25,
2010, Ward was found with more heroin (3 grams, to be exact)
when he was arrested on that date.
January 24, 2011, Ward was sentenced on the June 21 charges
to ten years imprisonment with seven years and ten months
suspended. On the second charge, Ward was sentenced to ten
years imprisonment with six years and nine months suspended.
The sentences were to run concurrently. Thus, in total, Ward
has three prior drug possession convictions in addition to
the distribution-of-cocaine charge in this case.
objects to the PSR's calculation of his sentence, arguing
that his two prior Virginia drug convictions from 2011 are
not "controlled substance offenses" as contemplated
by the Guidelines. ECF No. 25. Ward takes the view that a
categorical approach requires state statutes that regulate
"controlled substances" to regulate only the
substances that are also listed in the federal drug
schedules. Id. (citing United States v.
Townsend, 897 F.3d 66 (2d. Cir. 2018); United States
v. Gomez-Alvarez, 781 F.3d 787, 793-94 (5th Cir. 2015);
United States v. Leal-Vega, 680 F.3d 1160, 1166-67
(9th Cir. 2012); United States v. Sanchez-Garcia,
642 F.3d 658, 661 (8th Cir. 2011)). The Virginia law
applicable here includes at least one substance, out of over
100, that is not included on the federal schedule: Salvinorin
A. See Va. Code Ann. § 18.2-248; Va. Code
§ 54.1-3446(3). Consequently, a conviction under §
18.2-248 could be based on a substance that is not covered in
the federal schedules. According to Ward, under a categorical
approach, this possibility makes an offense under that
statute broader than the generic controlled substance offense
in Section 4Bl.2(b). Thus, in Ward's view, a violation of
§ 18.2-248 cannot count as a prior controlled substance
offense under a categorical approach. ECF No. 25.
reasons set out in the record and as discussed more fully
below, that argument lacks merit.
Court uses a categorical approach when "the enumerated
generic offense is a traditional, common-law crime."
United States v. Alfaro, 835 F.3d 470, 474 (4th Cir.
2016) . A categorical approach "considers 'how the
law defines the offense,' not 'how an individual
offender might have committed it on a particular
occasion.'" United States v. Thompson, 874
F.3d 412, 417 (4th Cir. 2017) (quoting Begay v. United
States, 553 U.S. 137, 141 (2008)). That is done under
the guidelines "based on how the offense is defined
'in the criminal codes of most states.'"
United States v. Peterson, 629 F.3d 432,
436 (4th Cir. 2011) (quoting Taylor v. United
States, 495 U.S. 575, 598 (1990)).
Court does not need to use a categorical approach when the
Guidelines phrase "does not describe a traditional
common-law crime, and the phrase thus does not invoke an
established, generic structure." Alfaro, 835
F.3d at 474. In those cases, the Court, "instead look[s]
to the ...