1 The enhancement statute reads, in pe rtinent part, “If any person

com mits a violation of this subparagraph . . . after two or more prior

convictions for a felony drug offense hav e become final, such person shall be

sentenced to a mandatory term of life imprisonment.” 21 U.S.C. § 841(b)(1)(A).

The term “felony drug offense” is defined in 21 U.S.C. § 802(44), see infra n.4. United States Court of Appeals

Fifth Circuit



## FILED

March 15, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 04-30403

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES CALVIN CURRY,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

Before JONES, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:

James Calvin Curry (“Curry”) has been sentenced to life

imprisonment as a recidivist drug offender. He appeals the

district court’s reliance on one of his prior state drug

convictions for purposes of the 21 U.S.C. § 841(b)(1)(A) 1

enhancement. Finding no error in the treatment of Curry’s

conviction for possession of contraband in a Louisiana prison, we

affirm.2 In the Information, the Government cited § 40:967(D) which had been

repealed prior to the conviction. The Information was subsequently amended.

2 BACKGROUND

James Cal vin Curry was charged by indictment with one

count of conspiracy to distribute fifty grams or more of crack

cocaine, one count of distribution of fifty grams or more of crack

cocaine, and six counts of distribution of fi ve grams or more of

crack cocaine. The Government also filed an Information and Notice

of Prior Narcotics Convictions seeking an enhanced sentence of life

imprisonment under 21 U.S.C. §§ 841 and 851. The Information

charged that Curry had two prior state felony drug convictions: one

in 1982 for possession of contraband in a state correctional

facility in violation of L A

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. § 14:402(B); and one in

1991 for distribution of cocaine in violation of L A

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.

§ 40:967(A)(1). 2 Curry’s state court Bill of Information for the

first offense stated, “James C. Curry did possess contraband, that

is, a controlled dangerous substance, to-wit: Marijuana, in a

state correctional institution, to wit: Wade Correctional Center,

in violation of R.S. 14:402(B).” R. Ex. 1.

The jury found Curry guilty of all eight counts, and,

based on the two prior convictions, he was sentenced to the

statutorily mandated sentence of life imprisonment. Curry filed a

timely notice of appeal, challenging only the sentence enhancement.

DISCUSSION3 Curry raises no claim of error relating to the district court’s use

of his other prior conviction for distribution of cocaine as an enhancement.

4 The statute reads, “The term ‘felony drug offense’ means an offense

that is punishable by imprisonment for more than one year under any law of the

United States or of a State or foreign country that prohibits or restricts

conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant

or stimulant substances.” 21 U.S.C. § 802(44).

3 Determinations of law are reviewed de novo. G ulf Marine

and Indus. Supplies, Inc. v. Golden Prince M/V , 230 F.3d 178, 179

(5th Cir. 2000). Although Curry frames some of his arguments based

on United States v. Booker

, 125 S. Ct. 738 (2005), because the

district court enhanced Curry’s sentence based on a statutory

enhancement provi sion and not the sentencing guidelines, we will

not address these arguments.

Curry contests the district c ourt’s use of his prior

felony drug conviction for possession of contraband in a penal

institution to enhance his sentence to life imprisonment under 21

U.S.C. § 841(b)(1)(A). 3 Curry bases this claim on the fact that

Louisiana state courts have interpreted this law as a crime

“per se.” See, e.g.

, State v. McMillan , 819 So. 2d 503, 507 (La.

Ct. App. 2002); S tate v. Convers e , 529 So. 2d 459, 466 (La. Ct.

App. 1988). Curry asserts that Congress did not intend to make

this offe nse, which lacks a mens rea component and is only a

misd emeanor if committed outside a penal institution, a “felony

drug offense” under 21 U.S.C. § 802(44). 4

In United States v. Sandle

, 123 F.3d 809 (5th Cir. 1997),

this court adopted the reasoning of the Eleventh Circuit in United4

States v. Hansley

, 54 F.3d 709, 715-16 (11th Cir. 1995), in holding

that “felony drug offense” as defined by § 802(44) can include drug

crimes requiring proof of only “mere possession.” 123 F.3d at 812.

Looking to the text of § 802(44), the court observed that Congress

included no gloss that would require the state offense to include

additional elements beyond possession. S andle

, 123 F.3d at 811-12.

Further, when juxtaposed with Congress’s use of the term “serious

drug offense” in 18 U.S. C. § 924(e), which is defined as an

“offense under State law, involving the manufacturing,

distributing, or possessing with intent to manufacture or

distribute, a controlled substance,” which thus excl u des drug

offen ses involving mere possession, the court concluded that

Congress intended to include possession offenses (rising to the

level of felonies) in the definition of “felony drug offenses” in

§ 802(44). S andle

, 123 F.3d at 812. Two other circuits (in

addition to the Eleventh Circuit, see Hansley

, supra ) have adopted

this position. See United States v. Spikes , 158 F.3d 913, 931-32

(6th Cir. 1998) (citing Sandle and Hansley and further noting that

“noth ing in the statutory definition for ‘felony drug offense’

remotely hints at the ‘possession plus’ gloss Spikes seeks to add

to the statute”); U nited States v. Maynie

, 257 F.3d 908, 919 n.5

(8th Cir. 2001) (citing Spikes with approval and describing that

case as “rejecting [the] argument that an additional element beyond

mere possession of drugs is necessary to meet the definition of a5 The Eighth Circuit’s willingness to adop t the reasoning of S andle

undercuts Curry’s reliance on an earlier Eighth Circuit opinion, United States

v. Pazzanese , 982 F.2d 251 (8th Cir. 1992).

5 ‘felony drug offense’”). 5 Curry attempts to distinguish his case

from Sandle because the prior offense for which S andle was

convicted, unlike Curry’s, required “general criminal intent.”

The government responds that a fair reading of S andle

forecloses Curry’s argument about his prior conviction. We agree.

For Curry to prevail on this issue, we would have to read a gloss

onto § 802(44) that requires all underlying state drug felony

convictions to require a criminal intent element in order to be

eligible as a “felony drug offense” as specifically defined by

Congress to include state felony drug offenses. This would require

the federal sentenc ing court to analyze the underlying state

offense whene ver the government sought an enhancement under this

provision, and perform a mens rea analysis in the first instance if

state courts had not yet done so. This task seems a far step from

the routine analysis suggested by Sandle and Unit ed States v.

Mankins

, 135 F.3d 946 (5th Cir. 1998), which held that the

district court need only verify that the previous convictions were

(1) felonies and (2) drug offenses. The use and statutory

definition of “felony drug conviction” in § 802(44) sweeps broadly

enough to include even strict liability offenses like those for6 We further note that other federal statutes make reference to state

law crimes in a similar respect to § 802(44). The federal RICO statute is one

ex ample. S ee 18 U.S.C. § 1961(1) (including as a predicate offense specific

crimes “chargeable under State law and punishable by imprisonment for more than

one year”). “The RICO statute therefore contemplates that both the acts charged

and the sentences imposed may vary according to the law of the state where the

acts occurred.” U nited States v. Fernandez

, 388 F.3d 1199, 1258 (9th Cir. 2004).

Unlike the statute at issue in Taylor and other cases where a common law crime

was i ncluded in a federal statute as part of the substantive offense (e.g.,

making “burglary” part of the offense), in the RICO statute, Congress explicitly

incorporated crimes “chargeabl e under state law” (18 U.S.C. § 1961(1)),

demonstrating that the legislature “clearly accept[ed] the inevitable variation

that results from incorporating state penalties into federal racketeering law.”

Fernandez

, 388 F.3d at 1258-59 (discussin g RICO). The same can be said of §

802(44)’s similarly explicit use of “felony drug offense” chargeable “under any

law . . . of a State.” As with RICO, Congress must have contemplated that the

e nhancement could have disparate results depending on where the defendant

committed his state felony drug offense.

6 which Curry was convicted. The logic of Sandle thus applies with

equal force to this case. 6

C urry asserts that the underlying state offense is

concerned with contraband of any kind in state penal institutions,

whether that contraband is cupcakes or crack cocaine. This

argument goes to the “related” requirement of the statute more

strongly than C urry’s “mens rea” contention. In P azzanese

, the

Eighth Circuit reversed a sentence which relied on a New York

criminal facilitation charge as a “felony drug offense” because the

state charge was a “general ‘catch all’ criminal statute designed

to reach the most remotely connected conduct in any given case. It

is not in and of itself a law which prohibits or restricts drug

conduct.” 982 F.2d at 254. Similarly, L A

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14:402(b) states, “No person shal l possess contraband upon the

grounds of any state correctional institution.” The law does not

specifically regulate, or “relate to,” drugs. However, the statute7

proceeds to define contraband in several subsections, one of which

addresses con trolled substances. S ee id. at 402(D)(1). This

circuit has addressed this type of challenge before. In Mankins

,

this court concluded that a p rior conviction for telephone

facilitation under 21 U.S.C. § 843(b) c onstituted a “felony drug

offense” because an element of the telephone facilitation offense

included facilitation of commission of a drug offense. 135 F.3d at

949. M ankins relied upon the fact that the previous conviction

“require[d] that in the course of using a communications facility

the defendant must either commit an independent drug crime, or

cause or facilitate such a crime.” Id.

If Curry had only been convicted of the general crime of

possession of contraband in a penal institution, a different result

might be required. Curry’s state court Bill of Information,

however, identified marijuana as the contraband. Thus, as in

Mankins

, Curry’s state conviction required the jury to find that he

was in possessi on of a controlled substance within a penal

institution, so the prior state conviction meets the “related to”

requirement of § 802(44).

Moreover, the Supreme Court recently reaffirmed that in

reviewing prior convictions to ascertain whether they fit a federal

enhancement provision, a court may review “the st atutory definition, charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual findings by the trial judge to

which the defendant assented.” S hepard v. United States

, 544 U.S.8

_ _, 125 S. Ct.

__ (Mar. 7, 2005) (Slip Op. at 2). Thus, S hepar d

reinforces the government ’s argument that it is not just the

generic crime of possession of contraband that was to be considered

here, but th e underlying facts, proved by the undisputed formal

conviction records.

Finally, Curry asserts that the rule of lenity requires

vacating his sentence. However, courts should “reserve[] [use of]

lenity for those situations in which a reasonable doubt persists

about a statute’s intended scope even after a resort to the

language and structure, legislative history, and motivating

policies of the statute.” Moskal v. United States , 498 U.S. 103,

108, 111 S. Ct. 461, 465 (1990) (int ernal quotations omitted;

emphasis in original) . The statutory language and structure of

§ 802(44) are clear. There is no need to resort to lenity.

For these reasons, the judgment and sentence of the

district court are AFFIRMED

.