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United States v. Furlow

United States Court of Appeals, Fourth Circuit

June 27, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
BRYSHUN GENARD FURLOW, Defendant-Appellant.

          Argued: March 21, 2019

          Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, Senior District Judge. (3:17-cr-00862-CMC-1)

         ARGUED:

          Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant.

          Robert Frank Daley, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

         ON BRIEF:

          Sherri A. Lydon, United States Attorney, Stacey D. Haynes, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

          Before WILKINSON and KING, Circuit Judges, and DUNCAN, Senior Circuit Judge.

          KING, CIRCUIT JUDGE.

         Defendant Bryshun Genard Furlow pleaded guilty in the District of South Carolina to a single count of possession with intent to distribute cocaine and methamphetamine, and also to possession of a firearm and ammunition as a convicted felon. After ruling that Furlow is an "armed career criminal" pursuant to the Armed Career Criminal Act (the "ACCA") and a "career offender" under the Sentencing Guidelines, the district court sentenced him to 180 months in prison. On appeal, Furlow maintains that he does not have the requisite number of predicate convictions for those sentencing enhancements. More specifically, he contends that the court erred in ruling that his prior felony convictions for distribution of crack cocaine in South Carolina and first-degree arson in Georgia are proper predicates under the ACCA and the Guidelines career offender provision. As explained below, we reject those contentions and affirm.

         I.

         A.

         Furlow's appeal concerns his designations as an "armed career criminal" under the ACCA (codified at 18 U.S.C. § 924(e)) and as a "career offender" pursuant to section 4B1.1 of the Sentencing Guidelines (the "career offender provision"). Both the ACCA and the career offender provision prescribe sentencing enhancements for certain federal offenses. They differ, however, in that the ACCA is a Congressional enactment binding on the federal courts, while the career offender provision is an advisory guideline promulgated by the United States Sentencing Commission.[1]

         Under the ACCA, a defendant designated as an "armed career criminal" and convicted of the federal offense of possessing a firearm or ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1), is subject to a minimum sentence of fifteen years and a maximum sentence of life in prison. See 18 U.S.C. § 924(e)(1). Absent an ACCA enhancement, however, the section 922(g)(1) offense has no mandatory minimum and is punishable by a maximum of ten years. See id. § 924(a)(2). A defendant is properly designated as an armed career criminal if he has three prior "violent felony" or "serious drug offense" convictions. See id. § 924(e)(1).

         In contrast to the ACCA's establishment of a fifteen-year mandatory minimum, the career offender provision creates no statutory penalty. A defendant who qualifies for an enhancement under that provision, however, may be subject to an increased Guidelines offense level and criminal history category, which would result in an increased advisory Guidelines range. See USSG § 4B1.1(b). A defendant is appropriately designated as a career offender, under Guidelines section 4B1.1, if his "instant [federal] offense of conviction" is a "crime of violence" or a "controlled substance offense," and if he has two prior convictions for such offenses. See USSG § 4B1.1(a).

         In assessing whether an offense constitutes a predicate for purposes of the ACCA or the career offender provision, a court looks to the various definitions of qualifying convictions contained in the ACCA and the Guidelines. As pertinent in this appeal, the ACCA "violent felony" definition and the Guidelines "crime of violence" definition are identical, in that they each enumerate "arson" as a qualifying predicate. See 18 U.S.C. § 924(e)(2)(B)(ii); USSG § 4B1.2(a)(2). The ACCA definition of a predicate "serious drug offense" and the Guidelines definition of a predicate "controlled substance offense" are likewise similar:

• The ACCA defines a "serious drug offense" as "an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law," see 18 U.S.C. § 924(e)(2)(A)(ii); and
• The Guidelines define a "controlled substance offense" as "an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense," see USSG § 4B1.2(b).

         B.

         1.

         In these proceedings, a grand jury in the District of South Carolina returned an October 2017 indictment charging Furlow with six offenses, including possession with intent to distribute cocaine and methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm and ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Furlow thereafter moved the district court for a pretrial determination as to whether - if found guilty of certain charges in the indictment - he would be designated as an armed career criminal under the ACCA, a career offender under the Guidelines, or both.

         In response to Furlow's pretrial request, the government filed an information alleging certain of his prior felony convictions. The information specified that Furlow had been convicted in Georgia for the felony offenses of possession with intent to distribute cocaine and possession with intent to distribute marijuana in 2003, and two counts of first-degree arson in 2008. The information further alleged that Furlow had been convicted in South Carolina for felony distribution of crack cocaine in 2016.

         In March 2018, the district court conducted a pretrial conference and informed Furlow that it had preliminarily determined that he was "most likely" an armed career criminal and a career offender. See J.A. 101.[2] About a month later, Furlow pleaded guilty to two offenses: possession with intent to distribute cocaine and methamphetamine, and possession of a firearm and ammunition as a convicted felon. Following Furlow's guilty pleas, the probation officer prepared a presentence report (the "PSR") recommending that the court designate Furlow as an armed career criminal. This recommendation was based on Furlow's two Georgia drug convictions (which the PSR counted as a single ACCA predicate), his two Georgia first-degree arson convictions (which the PSR also counted as a single predicate), and his South Carolina distribution of crack cocaine conviction.[3] The PSR also suggested that the court apply the career offender provision because Furlow had pleaded guilty in these proceedings to a "controlled substance offense" (that is, possession with intent to distribute cocaine and methamphetamine) and had been previously convicted of arson and distribution of crack cocaine.

         2.

         At the July 2018 sentencing hearing in Columbia, Furlow objected to the PSR's armed career criminal and career offender classifications. Insofar as the PSR counted his Georgia arson convictions as a predicate for the ACCA and the career offender provision, Furlow asserted that the term "arson" - as used in the ACCA definition of "violent felony" and in the Guidelines definition of "crime of violence" - is unconstitutionally vague. For that reason (and that reason only), Furlow contended that his arson convictions should not be counted as a predicate.[4]

         In addition, Furlow maintained that - contrary to the PSR's suggestion - his South Carolina conviction for distribution of crack cocaine was neither a "serious drug offense" under the ACCA nor a "controlled substance offense" under the Guidelines. According to Furlow, the South Carolina statute under which he was convicted, SC Code Ann. § 44-53-375(B), criminalizes a broader swath of conduct than that encompassed by the definitions of "serious drug offense" and "controlled substance offense." Specifically, Furlow asserted that section 44-53-375(B) of the South Carolina Code proscribes the mere purchase of a controlled substance. For those reasons, Furlow argued that he did not have the requisite number of predicate convictions for the armed career criminal and career offender designations.

         The district court rejected Furlow's arguments and adopted the PSR's recommendation that he is both an armed career criminal and a career offender. In assessing Furlow's contentions, the court applied the so-called "modified categorical approach" to the state statutes proscribing the relevant Georgia arson offenses and the South Carolina distribution of crack cocaine offense. That approach is proper when: (1) a state criminal statute is "divisible" - or in other words, when the statute "list[s] elements in the alternative . . . thereby defin[ing] multiple crimes" - and (2) at least one of those crimes has elements that match the elements of a predicate offense specified in the ACCA or the Guidelines, but another of those crimes does not. See Mathis v. United States, 136 S.Ct. 2243, 2249 (2016). In applying the modified categorical approach, a federal court may look to certain state court documents to determine "what crime, with what elements, [the] defendant was convicted of." Id. The court must then compare the elements of the defendant's crime of conviction with the elements of the ACCA or Guidelines predicate offense, and - if the court determines that the elements match - the defendant's prior conviction supports the pertinent sentencing enhancement. Id.

         With respect to Furlow's arson convictions, the district court reviewed Georgia's first-degree arson statute, that is, section 16-7-60(a) of the Code of Georgia. The court accepted the government's assertion that section 16-7-60(a) is divisible as a result of its five subsections and that at least one of the crimes defined therein has the same elements as the "generic" offense of arson enumerated in the ACCA "violent felony" definition and the Guidelines "crime of violence" definition. Consequently, the court reviewed several state court documents related to Furlow's arson convictions and determined that he had been twice convicted under subsection (1) of section 16-7-60(a), for using fire to "knowingly damag[e] the dwelling house of another individual." See J.A. 181. Because the court concluded ...


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