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United States v. Ward

United States District Court, E.D. Virginia, Richmond Division

December 6, 2018

UNITED STATES OF AMERICA
v.
TIMOTHY A. WARD, Defendant.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge

         This 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 Guidelines.

         For the reasons set out below and on the record, the objection was overruled during Ward's sentencing hearing.

         BACKGROUND

         A 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).

         This 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.

         After 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.

         On 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.

         DISCUSSION

         Ward 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.[1] 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.

         For the reasons set out in the record and as discussed more fully below, that argument lacks merit.

         I. Legal Background

         The 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)).[2]

         But the 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 ...


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