NOT RECOMMENDED FOR PUBLICATION 

File Name: 18a0110n.06 

No. 17-5301 

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

BROC KALON WHITFIELD, 

 Defendant-Appellant. 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF KENTUCKY 

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 

-2- 

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. 
No. 17-5301 

United States v. Whitfield 

-3- 

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)). 
No. 17-5301 

United States v. Whitfield 

-4- 

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. 
No. 17-5301 

United States v. Whitfield 

-5- 

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. 
No. 17-5301 

United States v. Whitfield 

-6- 

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 
No. 17-5301 

United States v. Whitfield 

-7- 

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.