Jones v. United States

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

EL DORADO DIVISION

KENNETH J. JONES PETITIONER

V. CASE NO. 1:11-cr-10004

CASE NO. 1:16-cv-01043

UNITED STATES OF AMERICA RESPONDENT

ORDER

Before the Court is the Report and Recommendation filed on June 23, 2017, by the

Honorable Barry A. Bryant, United States Magistrate Judge for the United States District Court

for the Western District of Arkansas. ECF No. 44. Petitioner has filed timely objections. ECF No.

45. The Court finds this matter ripe for consideration.

BACKGROUND

On May 31, 2016, Petitioner filed a Motion for Relief under 28 U.S.C. § 2255. ECF No.

36. Petitioner states that he was sentenced in the underlying criminal action to an enhanced

sentence under the Armed Career Criminal Act (“ACCA”). However, Petitioner now claims that

his conviction for unauthorized entry of an inhabited dwelling under La. Stat. Ann § 14:62.3 no

longer qualifies as a predicate offense in light of the Supreme Court’s ruling in Johnson v. United

States, 135 S. Ct. 2551 (2015), that the residual clause of the ACCA is unconstitutionally vague.

In response, the Government concedes that Petitioner’s conviction for unauthorized entry of an

inhabited dwelling no longer constitutes a predicate offense for purposes of the ACCA. However,

the Government argues that Petitioner is still subject to the enhanced ACCA sentence because

Petitioner’s 2002 conviction for possession of drug paraphernalia with intent to manufacture

methamphetamine qualifies as a “serious drug offense” as contemplated by the ACCA. In his

reply, Petitioner argues that “the Government cannot offer a new predicate conviction in support

of an enhanced ACCA sentence which it failed to rely on as a possible predicate felony at

sentencing.” ECF No. 43, p. 1. Petitioner further argues that regardless, a conviction for possession

of drug paraphernalia with intent to manufacture methamphetamine does not constitute a “serious

drug offense” under the ACCA.

Upon consideration, Judge Bryant found Petitioner’s arguments unpersuasive. Judge

Bryant noted that the Court did not delineate which of Petitioner’s prior convictions qualified as

predicate offenses under the ACCA. Judge Bryant further found that Petitioner’s conviction for

possession of drug paraphernalia with intent to manufacture methamphetamine qualified as a

“serious drug offense.” Accordingly, Judge Bryant concluded that Petitioner’s Motion for Relief

under 28 U.S.C. § 2255 should be denied. In his objections, Petitioner argues that Judge Bryant

erred (1) in finding that the Court may rely on a previously unnamed drug offense to now support

an ACCA enhancement and (2) in finding that possession of drug paraphernalia with intent to

manufacture methamphetamine qualifies as a “serious drug offense.”

DISCUSSION

The Court will address each of Petitioner’s objections in turn.

I. Whether Petitioner’s Conviction for Possession of Drug Paraphernalia with

Intent to Manufacture Methamphetamine May be Used as a Predicate Offense

Petitioner takes the position that the Court did not consider his conviction for possession

of drug paraphernalia with intent to manufacture methamphetamine when it determined that he

was subject to an enhanced ACCA sentence. Petitioner states that the PSR “listed his convictions

for possession of methamphetamine with intent to deliver, unauthorized entry into an inhabited

dwelling, and conspiracy to operate a clandestine laboratory for the manufacture of

methamphetamine as qualifying predicates for the [ACCA] enhancement.” ECF No. 45, p. 1

(citing ECF No. 26, ¶ 17). With this argument in mind, Petitioner asserts that “a new predicate

conviction cannot now be offered in support of an enhanced ACCA sentence that the Government

failed to rely upon as a possible predicate felony at sentencing.” ECF No. 45, pp. 3-4.

Upon consideration, the Court finds Petitioner’s arguments unpersuasive. Petitioner is

correct in noting that the PSR listed only three of Petitioner’s previous convictions when the

probation officer noted that Petitioner was subject to an enhanced sentence under the ACCA.

However, there is no indication that the Court only considered these three offenses in determining

that Petitioner was an armed career offender. At the sentencing hearing, the Court simply stated:

“Well, the probation office provided numerous certified judgments from Lafayette County

criminal records and from other courts in Louisiana which shows that you have and are properly

characterized as an Armed Career Offender.” ECF No. 42, p. 10.

Likewise, even if the Court had not considered Petitioner’s conviction for possession of

paraphernalia with intent to manufacture methamphetamine when the Court concluded that

Petitioner was subject to the ACCA enhanced sentence, Petitioner fails to cite to any binding

precedent that would bar the government from offering evidence of another predicate conviction

or, in turn, bar the Court from now considering that conviction. Although Petitioner does cite two

non-binding Eleventh Circuit decisions in support of his argument, those cases are distinguishable.

In Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013) (reversed on

other grounds McCarthan v. Dir. of Goodwill Indus., 851 F.3d 1076, 1080 (11th Cir. 2017)), the

Eleventh Circuit found that the petitioner had shown that his concealed-firearm conviction under

Florida law was not a “violent felony.” Bryant, 738 F.3d at 1278-79. The Bryant court noted the

Government’s contention that a separate conviction—burglary—could be used as a third predicate

offense in place of the concealed-firearm conviction. However, the court found that the

government had “waived this burglary issue at the initial sentencing[,]” stating:

At sentencing, the district court found that Bryant had at most three qualifying

predicate convictions, which were the concealed-firearm conviction and the two

drug convictions listed in the indictment. The government never objected to that

finding by the district court. Despite repeated opportunities to do so at sentencing,

the government also never suggested at any point that Bryant's 1988 burglary

conviction could serve as a § 924(e)-qualifying felony. At no time during Bryant's

direct criminal proceedings did the government ever rely on the burglary conviction

as a predicate felony for § 924(e) purposes. Therefore, we deny the government's

request to substitute the burglary conviction.

Id. at 1279 (internal citations omitted).

In Bryant, the district court found that the petitioner had “at most” three predicate offenses.

Thus, the government in Bryant was put on notice that the district court was only considering three

offenses as predicates and, therefore, if it wished to have more convictions considered it would

need to raise them. In contrast, in the instant case, the Court did not delineate which of Petitioner’s

previous convictions subjected him to the enhanced ACCA sentence, but instead simply stated that

the probation office had provided the Court with numerous judgments from Lafayette County and

Louisiana that established that Petitioner was a career offender under the ACCA. Furthermore,

Petitioner’s conviction for possession of paraphernalia with intent to manufacture

methamphetamine was in Lafayette County (ECF Nos. 39-1, 39-2). As such, here the Government

would have had no indication that the Court was not considering this conviction in determining

that Petitioner was subject to an ACCA enhanced sentence. Accordingly, Bryant is inapposite.

Petitioner also cites United States v. Canty, 570 F.3d 1251, 1253 (11th Cir. 2009), in

support of his position. In Canty, the district court concluded that the defendant was subject to an

ACCA enhanced sentence. However, the court did not state which convictions it relied upon in

determining that the defendant was an armed career offender. Canty, 570 F.3d at 1254. The

Eleventh Circuit noted that the government “did not request, and the court did not make, findings

as to how many violent felony or serious drug convictions [the defendant] had or whether those

crimes were committed on occasions separate from one another.” Id. The defendant appealed his

sentence and subsequent precedent established that his previous convictions for carrying a

concealed weapon no longer qualified as predicate offenses.

The court noted that “in order for [the defendant’s] ACCA sentence to be affirmed, his

crimes of escape, obstructing or opposing an officer with violence, and possession with intent

to sell cocaine all must be considered violent felonies or serious drug offenses.” Id. at 1255.

The defendant did not dispute that his drug conviction was a serious drug offense, “but, the

parties disagreed as to whether [the defendant’s] other two convictions should be counted as

violent felonies under the statute.” Id. Moreover, based on certified judgments1 the

government had offered into evidence, it was unclear whether the defendant’s other

convictions were “committed on occasions different from one another” so as to qualify as separate

predicate offenses. Likewise, the government had earlier explicitly waived reliance on facts

derived from outside of these certified judgments to support sentencing enhancements.

In Canty, the government sought, in relevant part, remand so that it could be given a second

opportunity to prove that certain of the defendant’s prior convictions supported an ACCA

enhanced sentence. In denying that request, the Eleventh Circuit stated:

Here, when given the opportunity, the Government failed to voice any objection

that the sentencing court had not made any findings as to which of [the defendant’s]

convictions were predicates for the ACCA enhancement or whether the crimes were

committed on occasions different from one another. Indeed, the Government not

only did not object; it adopted the PSR, which did not state which of [the

defendant’s] convictions were predicates for the ACCA enhancement and whether

the crimes were committed on occasions different from one another. More

importantly, the Government explicitly disclaimed reliance on any facts derived

from sources outside Exhibits 1 through 4 to meet its burden to prove the

applicability of the sentencing enhancement. Accordingly, the Government is not

entitled to a remand so that it can present additional evidence and seek additional

findings of fact and conclusions of law to support the ACCA enhancement when it

failed to offer such evidence and seek those findings and conclusions during the

initial sentencing hearing and did not object to the manner in which the sentence

was imposed. The Government is entitled to an opportunity to offer evidence and

seek rulings from the sentencing court in support of an enhanced sentence. But, the

1 These certified judgments are referred to as “Exhibits 1 through 4” below.

Government is entitled to only one such opportunity, and it had that opportunity at

the sentencing hearing.

Id. at 1257 (emphasis added).

From this excerpt, it is clear that although the Eleventh Circuit based its decision in part on

the fact that the government had not sought to offer evidence or requested specific findings at the

sentencing stage, it primarily relied on the fact that the government had explicitly waived reliance

on facts derived from outside of the certified state judgments in evidence. In contrast, in the present

case, the Government has not taken the affirmative steps taken by the government in Canty.

Furthermore, the Court notes that Canty concerned a direct appeal, whereas the present matter

come before the court on a § 2255 motion to vacate. Likewise, the Government in the instant matter

does not seek remand, but simply asks the Court to explicitly consider one of Petitioner’s previous

convictions it may well have considered when it determined that Petitioner is an armed career

offender.

Accordingly, although portions of Canty read out of context may be taken to support

Petitioner’s position, upon consideration of the facts and procedural posture of the case it becomes

clear that Canty is distinguishable and inapposite.

Therefore, upon de novo review, the Court concludes that (1) there is no indication that the

Court failed to consider Petitioner’s conviction for possession of paraphernalia with intent to

manufacture methamphetamine when it determined that Petitioner was subject to the ACCA

enhancement and (2) that even if the Court did not consider this offense, it may now consider the

Government’s proffered evidence to determine whether Petitioner is an armed career offender.

II. Whether Possession of Drug Paraphernalia with Intent to Manufacture

Methamphetamine Qualifies as a Serious Drug Offense

Petitioner’s second objection states that Judge Bryant erred in finding that possession of

drug paraphernalia with intent to manufacture methamphetamine constitutes a “serious drug

offense” for ACCA purposes.

Courts typically apply a categorical approach when determining whether a prior conviction

qualifies as a “serious drug offense”. See Taylor v. United States, 495 U.S. 575 (1990). Under the

categorical approach, a court “look[s] only to the fact of conviction and the statutory definition of

the prior offense” to determine if the crime in question constitutes a “serious drug offense.” Id.

However, “[w]hen a statute criminalizes both qualifying and non-qualifying conduct, courts apply

a modified categorical approach and may consider the charging document, plea agreement, plea-

colloquy transcript, or ‘some comparable judicial record of this information’ to determine under

which portion of the statute the conviction arose.” United States v. Bynum, 669 F.3d 880, 885 (8th

Cir. 2012) (quoting Shepard v. United States, 544 U.S. 13, 26 (2005)).

In its response to Petitioner’s Motion to Vacate, the Government argued that Petitioner’s

conviction for possession of drug paraphernalia with intent to manufacture methamphetamine was

pursuant to Ark. Code Ann. § 5-64-403(c)(5). ECF No. 39, p. 9. The Government came to this

conclusion after applying the modified categorical approach, as in 2001, the year of the conduct

underlying his conviction, Ark. Code Ann. § 5-64-403 clearly contained numerous crimes, some

of which likely would not qualify as “serious drug offenses.” Petitioner did not contest this point

and, upon consideration, the Court finds that the record clearly shows that Petitioner was convicted

under Ark. Code Ann. § 5-64-403(c)(5). In 2001, Ark. Code Ann. § 5-64-403(c)(5), stated as

follows:

It is unlawful for any person to use, or to possess with intent to use, drug

paraphernalia to manufacture methamphetamine in violation of this chapter. Any

person who pleads guilty, nolo contendere, or is found guilty of violating the

provisions of this subsection shall be guilty of a Class B felony and shall be fined

an amount not exceeding fifteen thousand dollars ($15,000).

Ark. Code Ann. § 5-64-403(c)(5).

Upon review of the Criminal Information underlying Petitioner’s conviction, it is evident

that Petitioner was charged with possession of drug paraphernalia with intent to manufacture

methamphetamine under Ark. Code Ann. § 5-64-403(c)(5). See ECF No. 39-1. The Criminal

Information notes Petitioner was charged with a Class B felony and alleged that on or about May

19, 2001, Petitioner did unlawfully:

use, or possess with intent to use, drug paraphernalia to manufacture

Methamphetamine in violation of this chapter; PUNISHABLE by imprisonment in

the Arkansas Department of Corrections for a term of not less than five (5) years

nor more than twenty (20) years, and/or a fine not to exceed fifteen thousand

($15,000.00) dollars.

ECF No. 39-1. In 2001, a Class B felony carried a sentence of not less than five years nor more

than 20 years. Ark. Code Ann. § 5-4-401(a)(3). This language tracks with that of § 5-64-403(c)(5).

Likewise, the Amended Judgment shows that Petitioner was specifically convicted of the

crime of “Possession of Drug Paraphernalia with Intent to Manufacture Methamphetamine” and

notes that this was a Class B Felony. ECF No. 39-2. These documents clearly establish that

Petitioner was convicted pursuant to Ark. Code Ann. § 5-64-403(c)(5). Accordingly, the question

becomes whether a conviction under Ark. Code Ann. § 5-64-403(c)(5) constitutes a conviction for

a “serious drug offense.”

Petitioner takes the position that a conviction for possession of drug paraphernalia with

intent to manufacture methamphetamine is not a “serious drug offense” as contemplated by the

ACCA because “the Arkansas statute points to drug paraphernalia and not the controlled substance

and § 924(e) specifically prohibits the conviction for possessing dangerous drugs and not

paraphernalia.” ECF No. 45, p. 6. Petitioner does not cite any authority in support of this

contention. This same argument was considered by Judge Bryant, but he concluded that a

conviction for possession of drug paraphernalia with intent to manufacture methamphetamine fell

within the definition of a “serious drug offense.” Specifically, Judge Bryant stated as follows:

the ACCA doesn’t require actual possession of a controlled substance. By its very

terms, it applies to any offense under state law “involving manufacturing,

distributing, or possessing with intent to manufacture or distribute, a controlled

substance.” Clearly, possession of drug paraphernalia with intent to manufacture

methamphetamine is an offense under state law and “involves” manufacturing a

controlled substance.

ECF No. 44, p. 9 (emphasis in original).

Upon de novo review, the Court finds that Judge Bryant came to the correct conclusion. 18

U.S.C. § 924 defines “serious drug offense” as:

an offense under State law, involving manufacturing,2 distributing, or possessing

with intent to manufacture or distribute, a controlled substance (as defined in

section 102 of the Controlled Substances Act (21 U.S.C. § 802)), for which a

maximum term of imprisonment of ten years or more is prescribed by law[.]”

18 U.S.C. § 924(e)(2)(A)(ii) (footnote added). In United States v. Bynum, the Eighth Circuit noted

that “involving,” as used in 18 U.S.C. § 924(e)(2)(A)(ii) is “an expansive term that requires only

that the conviction be related to or connected with drug manufacture, distribution, or possession,

as opposed to including those acts as an element of the offense.” 669 F.3d at 886 (internal quotation

marks omitted).

With this in mind, it is clear that a conviction for possession of drug paraphernalia with

intent to manufacture methamphetamine pursuant to Ark. Code Ann. § 5-64-403(c)(5) “involves”

manufacturing of a controlled substance, as the statute criminalizes the first step in the

methamphetamine manufacturing process—collecting the needed materials with the intent to put

2 21 U.S.C. § 802 states, in relevant part:

The term “manufacture” means the production, preparation, propagation, compounding, or

processing of a drug or other substance, either directly or indirectly or by extraction from substances

of natural origin, or independently by means of chemical synthesis or by a combination of extraction

and chemical synthesis, and includes any packaging or repackaging of such substance or labeling or

relabeling of its container[.]

those materials to the purpose of manufacturing methamphetamine. Furthermore, a conviction for

possession of drug paraphernalia with intent to manufacture methamphetamine pursuant to Ark.

Code Ann. § 5-64-403(c)(5), as a Class B felony, carries a possible sentence up to twenty years

imprisonment. Accordingly, it is clear that this conviction constitutes a “serious drug offense” for

ACCA purposes as it is a state offense involving manufacturing of a controlled substance and is

punishable by a maximum term of imprisonment of ten years or more. Thus, upon de novo review,

the Court concludes that Judge Bryant correctly found that Petitioner’s conviction for possession

of drug paraphernalia with intent to manufacture methamphetamine is categorically a “serious drug

offense” and, therefore, qualifies as an ACCA predicate offense.

CONCLUSION

For the foregoing reasons, the Court finds that Petitioner continues to be properly

categorized as an armed career offender and that Petitioner’s objections should be and hereby are

OVERRULED. Accordingly, the Court hereby adopts Judge Bryant’s Report and

Recommendation (ECF No. 44) in toto. Thus, the Court finds that no evidentiary hearing is

warranted, that no Certificate of Appealability shall issue, and that Petitioner’s Motion for Relief

under 28 U.S.C. § 2255 (ECF No. 36) should be and hereby is DENIED and DISMISSED WITH

PREJUDICE. The Court further finds that an appeal from dismissal would not be taken in good

faith.

IT IS SO ORDERED, this 4th day of April, 2018.

/s/ Susan O. Hickey

Susan O. Hickey

United States District Judge