Fourth Circuit Vacates Sentenced Incorrectly Enhanced Based on Inchoate Offenses: Jackson

United States v. Jackson, No. 22-4179

Jackson was charged in the District of South Carolina with possession of a firearm by a felon, in violation of 18 U.S.C. 922(g)(1). Probation determined that he had two prior felony convictions for controlled substance offenses which resulted in a base offense level of 26 under U.S.S.G. 2K2.1(a)(1) and Guideline range of 110 to 120 months in prison.

Jackson objected to probation’s calculations and argued that his prior convictions for distribution of crack cocaine under S.C. Code Ann. 44-53-375(B) were not controlled substance offenses following the court’s recent decision in United States v. Campbell, 22 F.4th 438 (4th Cir. 2022). Without the controlled substance offenses, Jackson’s base offense level would have been 20 and Guideline range of 63 to 78 months.

The government argued in opposition that Jackson’s prior convictions qualified as controlled substance offenses under the guidelines based on earlier Fourth Circuit precedent and contended that Campbell was inapplicable. The district court agreed with the government, overruled Jackson’s objection, and sentenced him to 115 months imprisonment. The court also noted that, even if its calculations were incorrect, it would have imposed the same sentence as an alternate variant sentence under 18 U.S.C. 3553(a).

On appeal, Jackson argued that the district court erred in determining that his prior South Carolina convictions qualified as controlled substance offenses under the Guidelines and that his sentence was procedurally and substantively unreasonable.

Section 2K2.1 of the Guidelines uses the same definition of a controlled substance offense as that found in the career offender provision, U.S.S.G. 4B1.2(b). To determine whether the priors qualified, the Fourth Circuit applied the categorical approach to determine whether the conduct under the state statute is broader than the Guidelines’ definition.

S.C. Code 44-53-357(B) covers any person who “manufactures, distributes, dispenses, delivers, purchases, or otherwise aids, abets, attempts, or conspires to manufacture, distribute, dispense, delivery or purchase with intent to distribute, dispense, or deliver methamphetamine or cocaine base.” The court had previously found the statute to be divisible, thus it applied the modified categorical approach and determined Jackson had been previously convicted of distribution of crack cocaine. Under South Carolina law, “distribute means to deliver (other than by administering or dispensing) a controlled substance.” And “deliver or delivery means the actual, constructive, or attempted transfer” of a controlled substance.

Jackson argued that the definition of distribution showed that the offense could be committed through inchoate conduct-attempted transfer. And in Campbell, the Fourth Circuit held that 4B1.2’s definition of a “controlled substance offense” does not include “an attempt to deliver a controlled substance.”

Accordingly, the South Carolina statute encompassed conduct broader than the Guidelines’ definition and could not qualify to enhance Jackson’s offense level under 2K2.1(a). Nonetheless, the government argued that the Fourth Circuit was bound by its prior cases finding the same statute to be a controlled substance offense. The court disagreed. The court easily distinguished Jackson’s case from the cases cited by the government.

The Fourth Circuit next turned to the government’s alternative argument, that the district court’s error was harmless because the court indicated that it would have sentenced Jackson to the same term regardless of the Guidelines. The Fourth Circuit has long held that “improper calculation of a guideline range constitutes significant procedural error, making the sentence procedurally unreasonable and subject to being vacated.” United States v. Hargrove, 701 F.3d 156, 161 (4th Cir. 2012).

The Fourth Circuit noted that the district court’s justification of imposing a variant sentence satisfied the first prong of harmless error. However, the district court failed to explain which of the 3553(a) factors would justify a sentence more than three years above the top of the correct guidelines range. As such, the error was not harmless.

Concluding that the South Carolina statute does not qualify as a controlled substance offense under the guidelines, and the error was not harmless, Jackson’s sentence was vacated and remanded for resentencing under the correct guideline range.