NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0145n.06
Nos. 16-3380/3406

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. SHAUN SMITH and LOWRELL NEAL, Defendants-Appellants. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: DAUGHTREY, MOORE, a nd GIBBONS, Circuit Judges. MARTHA CRAIG DAUGHTREY, Circuit Judge. Defendants Shaun Smith and Lowrell Neal each pleaded guilty to involvement in a dr ug-trafficking conspiracy. The district court sentenced Smith to 72 months’ imprisonment, to be followed by three years of supervised release, and Neal to 105 months’ imprisonment a nd three years of superv ised release. Both Smith and Neal appealed their sentences. Because we find that the district court did not err when it applied the career-criminal enhancement to Smith ’s sentence and that th e court’s consideration of confidential proffers during Ne al’s sentencing was, at most, harmless error, we affirm the judgments of the district court. FACTUAL AND PROCEDUR AL BACKGROUND Defendant Lowrell Neal pleaded guilty to vi olations of 21 U.S.C. §§ 841(a)(1) and 846. His plea agreement provided that he “obtained large quantities of heroin and cocaine” fromNos. 16-3380; 16-3406, United States v. Shaun Smith, et al.

-2- various suppliers and that he and others then distributed the drugs in Ohio. Neal’s plea agreement also stated that he supplied heroin an d cocaine to others for distribution, maintained “trap houses,” and used surveillance systems to thwa rt law enforcement. Indeed, Neal appears to have been one of the central figures in the cons piracy. The plea agreement stipulated that Neal was responsible for between 80 and 100 grams of heroin, corresponding to a base offense level of 22 under the United States Sentencing Guidelin es. Neal’s presentenc e report calculated his total offense level to be 21, with a criminal history category of VI, leading to an advisory sentencing range between 77 and 96 months. During sentencing proceedings, however, the di strict court determined that the amount of heroin to which Neal stipulated in his plea agre ement was inconsistent with the factual basis for the plea and his central role in the conspiracy. Because of this, the district court directed the probation officer to review confidential proffers in the case and to provide a better estimate for the quantity of heroin for which Ne al could be held responsible. The district court did not make the contents of those proffers available to Neal ( id .), and Neal objected both to the use of the proffers and to the district court’s refusal to provide the defense with the information contained in the proffers. The district court nevertheless relied upon the proffers and raised Neal’s total offense level to 31, which, with a criminal history category of VI, resu lted in a sentencing range between 188 and 235 months. The district court determ ined, however, that th is range was actually overstated the seriousness of Neal’s conduct and sentenced him instead to 105 months’ imprisonment. The district court recognized that it found Neal responsible for a larger quantity of drugs than the plea agreement stipulated, but indicated that even under the base offense level set by that stipulation, the court would have im posed the same sentence based on Neal’s conductNos. 16-3380; 16-3406, United States v. Shaun Smith, et al.

-3- in the case. Neal appeals his sentence, arguing that the district court violated his rights by relying on information from the confidential pro ffers, thus rendering his sentence procedurally unreasonable and requiring a remand for resentencing. Shaun Smith also pleaded guilty to viola ting provisions of 21 U.S.C. §§ 841(a)(1) and 846 and admitted that he was an “enforcer” for a drug-trafficking organizat ion, that he received heroin from others for distributi on, that he supplied sm all quantities of heroin to a co-conspirator for distribution, and that he committed two assau lts as part of the conspiracy. Smith’s plea agreement stipulated to a base offense level of 18, and his presentence report specified a total offense level of 29 with a criminal history cat egory of VI. Smith’s presentence report also determined that he was a career offender ( id .) and calculated an advi sory Guidelines range of 151 to 188 months. In hi s plea agreement, Smith reserved the ri ght to appeal the district court’s determination of the career-offender status. In his sentencing memorandum, Smith conceded that two prior convicti ons he received in Illinois, in 1998 and 2002, technically counted as predicate contro lled-substance offenses that would justify enhancement of his sentence und er the Guidelines’ career-offender provision, USSG § 4B1.1. Nevertheless, Smith argued that the district court should decline to enhance his sentence, both because of disparities among st ates’ sentences for Smith’s conduct—arguing that the same conduct in Ohio, for exam ple, would not meet the Guidel ines’ requirement that it be punishable by imprisonment for a term exceeding one year—and because Smith actually served less than one-year prison terms following his convictions. The di strict court rejected Smith’s arguments and found that Smith was a career offe nder. On this basis, the district court determined that Smith’s sentencing range was between 151 and 188 months but varied downward significantly to impose a 72-month se ntence, finding that the Guidelines rangeNos. 16-3380; 16-3406, United States v. Shaun Smith, et al.

-4- overstated Smith’s need for punishment, in part b ecause he played a relatively small role in the conspiracy. The district cour t also considered disparity issues when determining Smith’s

sentence. On appeal, Smith renews his objection to the application of the career-offender enhancement. In addition to the disparity argumen ts raised before the district court, Smith now argues (contrary to the position he took in his sentencing memorandum) that his prior Illinois convictions cannot serve as predicate offenses because the Illinois statute under which he was convicted covers conduct broader than th e conduct covered by the Guidelines. DISCUSSION Neal’s Sentence Neal argues that the district co urt’s use of the confidential pr offers violated both his right to due process and Federal Rule of Criminal Pr ocedure 32(i)(1)(B), and that his sentence was therefore procedurally unreasonable. “A sent ence is procedurally unr easonable if, among other things, the district court fails to calculate (or improperly calculates) the Guidelines range, treats the Guidelines as mandatory, fails to consider the § 3553(a) factors, sele cts a sentence based on clearly erroneous fact s, or fails to adequately explain the chosen sentence.” United States v.
Davis , 751 F.3d 769, 773 (6th Cir. 2014) (quoting Gall v. United States , 552 U.S. 38, 51 (2007) (internal quotation marks and alterations omitted)). Because Neal preserved his objections to the district court’s use of confiden tial proffer statements, we review his procedural-reasonableness challenge for an abuse of discretion. Id. We will find an abuse of discretion when we are “left with the definite and firm conviction that the trial court committed a clear error of judgment.” Logan v. Dayton Hudson Corp. , 865 F.2d 789, 790 (6th Cir. 1989). Clearly, committing an error of law constitutes abuse of discretion. United States v. Clay , 667 F.3d 689, 694 (6th Cir. 2012).Nos. 16-3380; 16-3406, United States v. Shaun Smith, et al.

-5- The government concedes—as it must, in light of our precedent—that the district court erred when it used undisclosed proffer statements to determine Neal’s Guidelines range. (Appellee Br. at 38) As we held in United States v. Coppenger , 775 F.3d 799, 806–07 (6th Cir. 2015), a criminal defendant must be provided adequate access to the information the court will use to calculate a sentence and afforded an opportunity to contest that information. See also United States v. Hamad , 495 F.3d 241, 247–51 (6th Cir. 2007). Otherwise, without adequate disclosure and access, the information cannot be used to establish a reliable sentence. However, this concession does not end our inquiry because, “even if a procedural sentencing error occurs, that erro r is not subject to remand for resentencing if the error is harmless.” Davis , 751 F.3d at 773. “Sentencing errors are harmless where this court is convinced that the erro r at sentencing did not cause the de fendant to receive a more severe sentence than would have ex isted without the error.” Id. (internal quotation marks omitted). When sentencing Neal, the district court made clear on the record that the sentence would have been the same regardless of Neal’s base offense level (which was increased on the basis of the proffers). That is to say, without the pro ffers, the district court would have varied upward from the sentence if it had set the offense level as suggested in the plea agreement, in order to have the sentence accurately re flect consideration of the sentencing factors of § 3553(a). See United States v. Richardson , 437 F.3d 550, 553–54 (6th Cir. 2006). Th e district court adequately explained its reasoning for arriving at Neal’s se ntence, and in this case, the district court’s reasoning was sound, both with rega rd to the downward departure from what the district court believed the correct guidelines calculation to be and with regard to the upward departure from what Neal maintained wa s the correct calculation. See Pepper v. United States , 562 U.S. 476, 490 (2011) (“[A]lthough a sentencing court must ‘give respectful c onsideration to theNos. 16-3380; 16-3406, United States v. Shaun Smith, et al.

-6- Guidelines, Booker permits the court to tailor the sentence in light of other st atutory concerns as well.’” (quoting Kimbrough v. United States , 552 U.S. 85, 101 (2007))). The record reflects that Neal ’s case is one of the “unusual” cases contemplated by the Supreme Court in which the distri ct court’s improper calculation of the relevant Guidelines range nevertheless does not prej udice the defendant. Molina-Martinez v. United States , 578 U.S. ___, 136 S. Ct. 1338, 1346–47 (2016); see also United States v. Wilson , 614 F.3d 219, 223 (6th Cir. 2010). Smith’s Sentence We first consider Smith’s argument that c onvictions under 720 Ill. Comp. Stat. § 570/401 categorically cannot serve as predicate of fenses for the purposes of career-offender enhancements under the Guidelines. The government contends that plain-error review applies to Smith’s argument that the Illinois statute under which he was convicted previously is broader than the Guidelines, because this argument is raised for the first time on appeal. (Appellee Br. at 17) Regardless of whether we review Smith’s argument for plain error or de novo , his argument fails. The Guidelines define a “controlled substance offense” that can serve as a predicate offense for enhancement under USSG § 4B1.1 1 as an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manu facture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit su bstance) or the possession of a controlled substance (or a counterfeit substan ce) with the intent to manufacture, import, export, distribute, or dispense.

1 USSG § 4B1.1 provides: A defendant is a career offender if (1) the defendan t was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.Nos. 16-3380; 16-3406, United States v. Shaun Smith, et al.

-7- USSG § 4B1.2(b). The record indicates that Smith twice pleade d guilty to violating the Illinois Controlled Substances Act, which prohibits the “[m]anufacture or deliver y, or possession with intent to manufacture or deliver, [of] a controlled subs tance, a counterfeit su bstance, or controlled substance analog.” 720 Ill. Comp. Stat. § 570/40 1. On both occasions, Smith was convicted for violating § 570/401(d). Smith first argues that his pr ior convictions cannot serve as predicate offenses for the purposes of a career-criminal enhancement, becau se “delivery” under the Illinois statute is not covered by the Guidelines language, and the st atute therefore criminalizes conduct beyond the contemplation of the Guidelines. The Guidelines define a controlled-s ubstance offense as one “that prohibits the . . . import, export, distribution, or dispensing of a controlled substance” or the possession of a controlled substance with the intent to do s o, but does not exp licitly prohibit “delivery.” USSG § 4B1.2. Howe ver, the Illinois stat ute defines delivery as “the actual, constructive or attempted transfer of possession of a controlled substance, with or without consideration, whether or not ther e is an agency relationship.” 720 Ill. Comp. Stat. § 570/102. As a result, this element of the offense falls squarely within the Guidelines definition and does not cover conduct broader than that covered by the Guidelines. Smith next argues that because the list of controlled substances criminalized under Illinois law includes a substance th at is not prohibited under fede ral law, his prior convictions cannot serve as predicate controlled-substance offe nses. Smith’s contention in this regard draws on the line of cases beginning with Taylor v. United States , 495 U.S. 575 (1990), and culminating in the Supreme Court’s recent decision in Mathis v. United States , 579 U.S. ___, 136 S. Ct. 2243 (2016). Both cases involved senten ces enhanced under the Armed Career CriminalNos. 16-3380; 16-3406, United States v. Shaun Smith, et al.

-8- Act (ACCA), 18 U.S.C. § 924, based on the defendant ’s prior convictions in state courts. In each instance, the sentencing courts were faced with determining whether the prior convictions were for “violent felonies.” The analysis employed in these cases also applies to the determination of whether a prio r conviction qualifies as a predicate offense for the purposes of the career-offender enhancement under USSG § 4B1.2(a)(2). See United States v. Bartee , 529 F.3d 357, 363 (6th Cir. 2008) (holding that “par allel provisions in the definitions of a ‘violent felony’ under the ACCA and a ‘crime of violence’ under [the Guidelines] should be interpreted in a consistent manner”). In the ACCA framework, the cen tral inquiry is whether the elements of the offense for which a criminal defendant was convicted “suffi ciently match” the elements of the so-called “generic offense” that is a crime of violence. Mathis , 136 S. Ct. at 2248. This analysis employs the categorical approach—if the elements of the st atute of conviction are th e same as or narrower than the generic form of the offense, it qualifies as a predicate offense. If not, regardless of the actual conduct of the defendant that led to conviction, it is not a predicate offense. Id. at 2247–
48. In Mathis , the Court noted that a stat ute may define a crime with a single set of elements, or it may define multiple crimes by listing multiple, alte rnative elements disjunctively. In the latter case, the statute is said to be “divisible.” Descamps v. United States , 133 S. Ct. 2276, 2281 (2013). In dealing with a divi sible statute, a sentencing cour t must determine which of the alternative elements are “integra l” to the defendant’s conviction in order to decide which crime was the offense of conviction. In aid of this determination, the sentencing court may invoke the “modified categorical approach,” which permits it to “look[ ] to a limited cl ass of documents (for example, the indictment, jury instructions, or plea agreement and collo quy) to determine what crime, with what elements the de fendant was convicted of . . . [and] then compare the crime, asNos. 16-3380; 16-3406, United States v. Shaun Smith, et al.

-9- the categorical approach commands, with the relevant generic offense.” Mathis , 136 S. Ct. at 2249 (citing Shepard v. United States , 544 U.S. 13 (2005)). If, howev er, an alternately phrased statute “enumerates various factual means of committing a single elem ent,” a prior conviction under that statute cannot suppor t a career-criminal enhancement under the Guidelines. Id. at 2249-50 (emphasis added). Smith and the government disagree about the Illinois statute under which Smith was convicted. Does it set out multiple alternative elements and, thus, divisible crimes, or merely alternative means of committing a single offense? Sm ith argues, in effect, that the Illinois statute prohibiting delivery of controlled s ubstances is not divisible and that, because it criminalizes some substances not barred by fede ral law, it is broader than th e parallel federal statute. It follows, Smith contends, that offenses listed in the state statute cannot be predicate offenses, including the two pr ior offenses for which he was convicted under that statute. The government counters that the relevant statute is divisible under Mathis , thereby allowing c onsideration of the Shepard documents to determine that the elements of Smith’s offense are within the conduct covered by the Guidelines. 2 Because there is no requirement that the par ticular controlled substance underlying a state conviction also be controlled by the federal govern ment, and because the Guidelines specifically include offenses under state law in § 4B1.2, the fact that Illinoi s may have criminalized the “manufacture, import, export, di stribution, or dispensing” of so me substances that are not criminalized under federal law does not preven t conduct prohibited unde r the Illinois statute

2 In Shepard , the Supreme Court discu ssed which types of documents may, if necessary, be used to establish the crime for which a defendant was previously convicted. The Court limited those documents to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” 544 U.S. at 26. Smith’s charging docume nts are in the record as attachments to his sentencing memorandum.Nos. 16-3380; 16-3406, United States v. Shaun Smith, et al.

-10- from qualifying, categorically, as a predicate offe nse. Smith’s prior convictions under 720 Ill. Comp. Stat. § 570/401(d) thus are predicate offenses. We next review de novo Smith’s legal argument that the application of the careeroffender enhancement in his case violates due pro cess. He contends that because his predicate offenses were for minor conduct, involving less than a gram of crack cocaine, and because different states would punish such conduct differently—making c onvictions in some states like Illinois predicate offenses, but not in others like Ohi o—it would violate due process to use them as the basis for enhancement. That Smith’s conduct was relatively minor and may have garnered a sentence less than one year in jurisdictions other than Illinois does not prevent his convictions from serving as predicate offenses. The Guidelines langua ge counts as predicat e offenses those “ punishable by imprisonment for a term exceeding one year,” USSG § 4B1.2 (emphasis added), not those for which more than a year was actually served. USSG § 4B1.2 cmt. n.1 (prior felony conviction “means a prior adult federal or state conviction for an offense punishable by . . . imprisonment for a term exceeding one year, regardless of . . . the actual sentence imposed”). See Burgess v. United States , 553 U.S. 124, 128 (2008); see also Barde v. United States , 224 F.2d 959, 959 (6th Cir. 1955) (noting that “it is no t actual punishment imposed but th at which the statute authorizes which determines whether a crime is a felony or a misdemeanor”); United States v. Garza , 999 F.2d 1048, 1051–52 (6th Cir. 1993) (“[T]he Commis sion acted within its authorization in making career offender determinations depend upon the existence of prior convictions for categories of felonies . . . . Ga rza’s previous convictions were in state courts where state laws relating to offenses and sentencing controlled. It is immaterial that he received lenient sentences in state courts.”).Nos. 16-3380; 16-3406, United States v. Shaun Smith, et al.

-11- Other courts that have considered similar ar guments regarding dispar ities in drug-offense convictions have also rejected them. See, e.g. , United States v. Fink , 499 F.3d 81, 87 (1st Cir. 2007) (holding that the fact that “the definitions of crimes that may vary from state to state is insufficient to conclude that [the enhancemen t based on prior convictions] violates the equal protection of the law”); United States v. Maynie , 257 F.3d 908, 919 n.5 (8th Cir. 2001) (same). The reasoning underlying these cases is persuasi ve here. It recognizes that “[u]nder 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) (interna l quotation marks omitted). As the Ninth Circuit has explained, “B ecause states are primarily responsible for criminal law enforcement, there is no pressing need for natio nal uniformity in the sentencing enhancement context, and it is not surprising that the courts of appeals interpreting th e Sentencing Guidelines have incorporated variations in st ate punishments for drug offenses.” Cazarez-Gutierrez v. Ashcroft , 382 F.3d 905, 913–14 (9th Cir. 2004). The f act that different states punish the possession of a certain amount of a controlled substance diffe rently, thus making the same conduct a predicate for a career-criminal enhancem ent for some defendants but not for others, does not give rise to a constitutional challenge to the Guidelines. See United States v. Millsaps , 157 F.3d 989, 996 (5th Cir. 1998) (“Congress was well aw are that different states classify similar crimes differently. Congress’[s] de ference to the states in this matter is not irrational.”) (quoting United States v. Kubosh , 63 F.3d 404, 407 (5th Cir. 1995)); cf. United States v. Holmes , 11 F. App’x 408, 409 (6th Cir. 2001) (“A wide disparit y between sentencing schemes of different jurisdictions does not violate equal protection, even where tw o persons who commit the same crime are subject to different sentences.”).Nos. 16-3380; 16-3406, United States v. Shaun Smith, et al.

-12- CONCLUSION For the reasons set out above, we AFFIRM the judgments of th e district court.