United States v. King

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0076p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 07-1012

v.

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ROBERT LEE KING, -

Defendant-Appellant. -

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Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 05-00247—Robert Holmes Bell, Chief District Judge.

Argued: December 5, 2007

Decided and Filed: February 14, 2008

Before: GUY, MOORE, and GILMAN, Circuit Judges.

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COUNSEL

ARGUED: Sharon A. Turek, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids,

Michigan, for Appellant. Jennifer L. McManus, ASSISTANT UNITED STATES ATTORNEY,

Grand Rapids, Michigan, for Appellee. ON BRIEF: Sharon A. Turek, FEDERAL PUBLIC

DEFENDER’S OFFICE, Grand Rapids, Michigan, for Appellant. Raymond E. Beckering, III,

ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. In a matter of first impression for this court, we

are asked to determine whether a court can consider only offenses that took place within a limited

time period when considering what offenses qualify as a “prior conviction[] for a similar offense,”

under 2006 U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2D1.1(a)(1). Robert King (“King”)

pleaded guilty to the distribution of fentanyl1 resulting in death in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(C). When calculating King’s base offense level, the district court

1

Fentanyl is a prescription pain killer and is classified as a Schedule II narcotic. 21 U.S.C. § 812. According

to the Drug Enforcement Administration, fentanyl has “an analgesic potency of about 80 times that of morphine,” and

“[t]he biological effects of . . . fentanyls are indistinguishable from those of heroin, with the exception

that the fentanyls may be hundreds of times more potent.” U.S. Drug Enforcement Administration, Fentanyl,

http://www.usdoj.gov/dea/concern/fentanyl.html.

1

No. 07-1012 United States v. King Page 2

considered King’s 1984 conviction for delivery of marijuana to be a “prior conviction[] for a similar

offense,” U.S.S.G. § 2D1.1(a)(1), which set King’s base offense level at 43. On appeal, King claims

that § 2D1.1 contains implicit time limits that restrict the convictions that can be used, making his

1984 conviction too old to count under § 2D1.1(a)(1). According to King, the district court should

have instead set his base offense level at 38 under § 2D1.1(a)(2). Today, we hold that § 2D1.1(a)(1)

does not contain any implicit time limitations; therefore, the district court did not err when it

considered King’s 1984 marijuana-delivery conviction. For the reasons explained below, we

AFFIRM King’s sentence.

I. BACKGROUND

The factual basis of King’s conviction is not in dispute and merits only a brief summary.

King’s indictment was based on King’s fentanyl distribution leading to two deaths. On January 8,

2005, Emily Waskiewicz (“Waskiewicz”) met King at the home of a mutual acquaintance, and there

King provided Waskiewicz with methadone and fentanyl. The next morning Waskiewicz was dead.

The cause of death was “from mixed drug toxicity of methadone and fentanyl.” Joint Appendix

(“J.A.”) at 92 (Presentence Report (“PSR”) ¶ 41). While the police were investigating Waskiewicz’s

death, King’s fentanyl distribution again led to tragedy. On October 1, 2005, King gave fentanyl

powder to Garry Sneller (“Sneller”). The next day, King discovered that Sneller had died from a

drug overdose, and subsequent tests revealed a lethal level of fentanyl in Sneller’s body.

On October 27, 2005, a grand jury indicted King for knowingly distributing methadone and

fentanyl that resulted in the death of Waskiewicz, in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(C). On December 20, 2005, the grand jury delivered a superseding indictment that added

a second count of distribution and possession with intent to distribute fentanyl, resulting in the death

of Sneller, as well as a third count of conspiracy to possess with intent to distribute and distribute

oxycodone. On June 27, 2006, the grand jury delivered a second superseding indictment splitting

into two separate counts what had initially been the single count relating to Sneller’s death. On

August 14, 2006, the district court dismissed the Sneller-related count of possession with intent to

distribute fentanyl that resulted in Sneller’s death, leaving the Sneller-related count for distribution

of fentanyl. Subsequently, King reached an agreement with the government, and on August 15,

2006, King pleaded guilty to the count of distribution of fentanyl that resulted in the death of

Sneller. As part of the plea agreement, the government agreed to move to dismiss all other charges.

King’s PSR calculated his sentence using § 2D1.1(a)(1), which imposes a base offense level

of 43 when the defendant has a conviction for a prior similar offense. This is in contrast to

§ 2D1.1(a)(2), which imposes a base offense level of 38 when the defendant does not have a

conviction for a prior similar offense. The government contended that a 1984 conviction for

delivery of marijuana counted as a conviction for a prior similar offense.2 King objected, claiming

that a prior offense triggers § 2D1.1(a)(1) only when it is recent enough to count in calculating the

criminal history category under U.S.S.G. Chapter 4 as well. King argued that “the default position

is that to be an eligible predicate, it must score criminal history points under Chapter 4.” J.A. at 60

(Dec. 20, 2006, Sent. Hr’g at 5:6-17). Because the1984 conviction was too old to count in

calculating the criminal history category, see J.A. at 110 (PSR ¶ 134); U.S.S.G. § 4A1.2(e) (setting

time limits of ten and fifteen years for offenses used in calculating criminal history), King urged the

district court not to use the 1984 conviction when calculating the base offense level under

§ 2D1.1(a)(1). The district court concluded that a plain reading of the Guidelines showed that “there

appears to not be a time period” that would limit the scope of § 2D1.1(a)(1). J.A. at 62 (Sent. Hr’g

at 7:3-17). The district court then set King’s base offense level at 43.

2

Whether the marijuana conviction was actually “similar” is not contested on appeal.

No. 07-1012 United States v. King Page 3

On December 21, 2006, the district court sentenced King to a 288-month term of

imprisonment, and King filed a timely appeal.

II. DISCUSSION

A. Standard of Review

“We review de novo the sentencing court’s interpretation of the Sentencing Guidelines and

statutes, and we review for clear error its factual findings.” United States v. Corrado, 304 F.3d 593,

607 (6th Cir. 2002), cert. denied, 537 U.S. 1238 (2003).

B. Interpreting § 2D1.1

King asserts that the time limits that would bar a 1984 conviction from consideration under

the criminal history category provisions of § 4A1.2(e)3 also apply to exclude stale convictions under

§ 2D1.1(a)(1). King argues that, as a default rule, “only convictions that qualify for criminal history

points generally should be used as predicate offenses to increase base offense levels.” Appellant Br.

at 12. We conclude that both the text of the Guidelines and other circuits’ conclusions contradict

King’s arguments.

King puts forward several arguments, based on both Chapters 2 and 4 of the U.S.S.G., to

explain why we should extend the time limits of § 4A1.2(e) to Chapter 2. First, King contends that

the text of § 4B1.4, the Guidelines version of the Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e), makes it clear that § 4A1.2(e) creates a default time limit for the entire U.S.S.G. King

points to § 4B1.4 because an application note for that provision states that § 4A1.2’s time limits do

not apply; according to King, the disclaimer of § 4A1.2’s reach must mean that § 4A1.2 would

otherwise serve as the default rule. An application note to § 4B1.4 makes it clear that “the time

periods for the counting of prior sentences under § 4A1.2” are not “applicable to the determination

of whether a defendant is subject to an enhanced sentence under 18 U.S.C. § 924(e).” U.S.S.G.

§ 4B1.4 cmt. n.1. Yet even if § 4A1.2(e) does create a default time-limit within Chapter 4, there is

no reason to believe that a limit in a chapter on criminal history would necessarily span all other

chapters. Section 4B1.4’s explicit disclaimer of § 4A1.2’s time limits does not prove the existence

of a default time limit in § 2D1.1(a)(1) because not only is § 4B1.4 in close proximity to § 4A1.2,

but also § 4B1.4 explicitly references Part A of Chapter 4. See U.S.S.G. § 4B1.4(c) (“The criminal

history category for an armed career criminal is the greatest of . . . the criminal history category from

Chapter Four, Part A . . . .”). Thus, the decision to disclaim § 4A1.2’s time limits within § 4B1.4

may not in fact establish § 4A1.2’s role as a default and may instead have more to do with the

Sentencing Commission’s (“Commission”) need to ensure that the Guidelines are clear when one

provision references another.

The Seventh Circuit, in addressing this argument, also concluded that § 4B1.4’s disclaimer

of § 4A1.2’s time limits does not mean that the time limits of § 4A1.2 are the default rule in Chapter

2:

The fact that § 4B1.4 (Armed Career Criminal) makes explicit that the

15-year limit does not apply to that section is not to the contrary. The Sentencing

Commission’s explicit rejection of the 15-year limit in this section does not mean

that the Commission intended to apply the 15-year limit in sections that say nothing

about such a limit. Unlike § 2L1.2, § 4B1.4 is in the same chapter as the criminal

3

Section 4A1.1 provides the structure for the determination of the criminal history category, but the applicable

time periods for prior convictions that are counted appear in § 4A1.2(e). According to § 4A1.1’s commentary, “§§ 4A1.1

and 4A1.2 must be read together.” U.S.S.G. § 4A1.1 cmt.

No. 07-1012 United States v. King Page 4

history section. Moreover, § 4B1.4(c)(1) specifically utilizes the criminal history

calculation of Chapter 4, Part A. Thus, clarity demanded that the Commission

explicitly state that the time-period limitation did not apply when determining

whether a defendant qualifies for application of § 4B1.4. The fact that the

Commission was explicit in a section where explicitness was particularly necessary

does not indicate that, unless explicitly rejected, the time limit always applies. No

such considerations of clarity would naturally lead to the explicit rejection of this

time limit in § 2L1.2(b).

United States v. Gonzalez, 112 F.3d 1325, 1331 (7th Cir.) (citation omitted), cert. denied, 522 U.S.

962 (1997). We find this analysis persuasive, and we also conclude that the rejection of the time

limit in § 4B1.4 does not mean that § 4A1.2(e) applies as a default in Chapter 2.

King’s contention that the time limits of § 4A1.2(e) are a default in Chapter 2 is further

weakened because some provisions of Chapter 2 explicitly adopt the time limits of § 4A1.2(e). If

§ 4A1.2(e) applied as an unstated background rule, the explicit mention of § 4A1.2(e) in Chapter

2 would be unnecessary. The fact that some provisions of Chapter 2 adopt § 4A1.2(e)’s time limits,

but § 2D1.1(a)(1) does not explicitly adopt the limits of § 4A1.2(e), suggests to us that § 4A1.2(e)

is not applicable to § 2D1.1(a)(1). For instance, § 2K1.3(a)(1), regarding the possession and

transportation of explosive materials, provides for a base offense level of 24 “if the defendant

committed any part of the instant offense subsequent to sustaining at least two felony convictions

of either a crime of violence or a controlled substance offense.” U.S.S.G. § 2K1.3(a)(1).4 An

application note for § 2K1.3 cross-references §§ 4A1.1 and 4A1.2 and states that the sentencing

court should “use only those felony convictions that receive criminal history points under

§ 4A1.1(a), (b), or (c).” U.S.S.G. § 2K1.3 cmt. n.9. Similarly, § 2K2.1(a), regarding the

transportation, receipt, and possession of firearms, has several provisions that refer to previous

felony convictions. There too, an application note directs the sentencing court to “use only those

felony convictions that receive criminal history points under § 4A1.1(a), (b), or (c).” U.S.S.G.

§ 2K2.1 cmt. n.10. The fact that provisions in Chapter 2 explicitly invoke the limits of §§ 4A1.1 and

4A1.2 when they wish them to apply strongly suggests that the time limits do not apply as a default

in Chapter 2; instead, the explicit references to § 4A1.1 in other chapters suggest that the time limits

of § 4A1.2(e) apply only when the Guidelines invoke them.

Anticipating this argument, King asserts that the references to §§ 4A1.1 and 4A1.2 found in

§§ 2K1.3 and 2K2.1 are “not even necessary, given that Congress only mentions the limit on

convictions when it means to do away with that limit in a specific context. The note is included to

avoid separate consideration of related sentences.” Appellant Br. at 13. King’s argument is

unavailing. In both §§ 2K1.3 and 2K2.1, the time limit is mentioned only when the Guidelines

instruct a sentencing court to apply the time limit; King’s claim that “Congress only mentions the

limit on convictions when it means to do away with that limit in a specific context” is clearly

contradicted by the Guidelines. Furthermore, King’s claim that Chapter 2 mentions § 4A1.2 only

to avoid separate consideration of related sentences is equally unavailing, because when the

Guidelines wish to avoid separate consideration of related sentences, the Guidelines state exactly

that. See, e.g., U.S.S.G. § 2D1.5 cmt. n.3 (“A sentence resulting from a conviction sustained prior

to the last overt act of the instant offense is to be considered a prior sentence under § 4A1.2(a)(1)

and not part of the instant offense.”); U.S.S.G. § 2E1.1 cmt. n.4 (“Where such previously imposed

sentence resulted from a conviction prior to the last overt act of the instant offense, treat as a prior

sentence under § 4A1.2(a)(1) and not as part of the instant offense.”). Lastly, importing the time

limits of § 4A1.2(e) would not even address the issue of separate consideration of related sentences

in §§ 2K1.3 and 2K2.1 because applying the time limits of § 4A1.2(e) ensures that §§ 2K1.3 and

4

Section 2K1.3(a)(2) is analogous but applies if the defendant has only one felony conviction.

No. 07-1012 United States v. King Page 5

2K2.1 use offenses from the same time period as would be used in Chapter 4, therefore, increasing

the chances that related sentences would be double counted.

Although both §§ 2K1.3 and 2K2.1 invoke § 4A1.2 in order to apply the time limit, King

points out that § 2L1.2, in contrast, appears to waive the applicability of § 4A1.2’s time limit.

According to King, § 2L1.2’s waiver of § 4A1.2’s time limit proves that § 4A1.2(e) is indeed a

default for Chapter 2. We disagree. Section 2L1.2 sets the Guidelines range for those convicted of

unlawfully entering or remaining in the United States. Section 2L1.2 can increase the defendant’s

base offense level by 12 points “[i]f the defendant previously was deported, or unlawfully remained

in the United States, after . . . a conviction for a felony drug trafficking offense for which the

sentence imposed was 13 months or less.” U.S.S.G. § 2L1.2(b)(1)(B). The Guidelines application

note then explains that “‘[s]entence imposed’ has the meaning given the term ‘sentence of

imprisonment’ in Application Note 2 and subsection (b) of § 4A1.2 . . . , without regard to the date

of the conviction.” U.S.S.G. § 2L1.2 cmt. n.1(B)(vii) (emphasis added). Similarly, when defining

“aggravated felony” an application note to § 2L1.2 states that “‘aggravated felony’ has the same

meaning given that term in section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C.

§ 1101(a)(43)), without regard to the date of conviction for the aggravated felony.” U.S.S.G.

§ 2L1.2 cmt. n.3(A). At first blush, the use of the phrase “without regard to the date of conviction”

does appear to support King’s position. However, the Commission’s use of the phrase has another

possible explanation other than King’s rationale that it signals the rejection of an otherwise present

and unstated default.

According to two of our sister circuits, the reason why § 2L1.2’s application notes explicitly

state “without regard to the date of conviction” is to maintain Chapter 2’s default of no time limit

when the Guidelines draw upon definitions from other sources that do have time limits. The

Eleventh Circuit explained:

Recall that the definitions of “sentence imposed” and “aggravated felony,” the two

terms in § 2L1.2 with the “date of conviction” language, are imported from

provisions outside of § 2L1.2. See U.S.S.G. § 2L1.2, application nn.1(B)(vii), 3(A).

Each of those provisions has language limiting the time period in which certain kinds

of convictions can apply. It is entirely possible, indeed likely, that the Sentencing

Commission wanted to import into § 2L1.2 the substantive definitions from these

other provisions, but not the time limitations they contain, and that is the reason it

added the “without regard to the date of conviction” language in the application

notes defining “sentence imposed” and “aggravated felony.”

United States v. Camacho-Ibarquen, 410 F.3d 1307, 1313 (11th Cir.), cert. denied, 546 U.S. 951

(2005). The Eleventh Circuit’s rationale is compelling because it is clearly true that application

notes to § 2L1.2 cross reference two sections that already included time limits. Of the cross-

referenced provisions, we have already discussed Chapter 4’s time limits, and 8 U.S.C.

§ 1101(a)(43) includes a fifteen-year time limit. See 8 U.S.C. § 1101(a)(43) (stating that the term

“[‘aggravated felony’] applies to an offense described in this paragraph whether in violation of

Federal or State law and applies to such an offense in violation of the law of a foreign country for

which the term of imprisonment was completed within the previous 15 years” (emphasis added)).

The Tenth Circuit, citing Camacho-Ibarquen, reached the same conclusion as the Eleventh Circuit:

“These alterations to the borrowed definitions evince an intent to treat all prior convictions the same,

regardless of their age, for purposes of § 2L1.2. Why, if age limits are explicitly eliminated from

borrowed definitions, should we assume that age limits are implicitly imported into unborrowed

definitions that contain no explicit age limits?” United States v. Torres-Duenas, 461 F.3d 1178,

1182 (10th Cir. 2006), cert. denied, 127 S. Ct. 3054 (2007). Thus, we agree with the Tenth and

Eleventh Circuits that “without regard to the date of conviction” does not eliminate a default time

limit that exists in Chapter 2, as King claims, but instead the Commission simply intended to make

No. 07-1012 United States v. King Page 6

it clear that Chapter 2’s no-time-limit default continues to apply even when the Guidelines draw

upon terms from provisions that do contain time limits.

Although the instant case asks whether § 4A1.2(e)’s time limits apply to § 2D1.1(a)(1), it

is worth noting that no circuit that has addressed the issue of whether Chapter 4’s time limits apply

to Chapter 2—neither the Seventh, Ninth, Tenth, nor Eleventh Circuits—has ever held that a

conviction is too old to qualify for consideration under § 2L1.2. Camacho-Ibarquen, for instance,

involved a defendant challenging a 2003 sentence for which the sentencing court used convictions

from 1985 and 1988 under § 2L1.2. Camacho-Ibarquen, 410 F.3d at 1310-11. In that case, the

Eleventh Circuit held that when there is no mention of a time limit, the court will not read one into

Chapter 2. See id. at 1311 (“Neither the text of § 2L1.2 nor the application notes that follow state

that ‘a conviction’ must have occurred within a particular time period before the current offense for

the relevant enhancement listed in § 2L1.2(b)(1)(A)-(E) to apply.”). Similarly, the Seventh Circuit

also rejected the argument that § 2L1.2 implicitly adopts the limits of § 4A1.2. See Gonzalez, 112

F.3d at 1330. The Seventh Circuit and Ninth Circuits have emphasized that the provisions in

Chapter 2 and the criminal history calculations in Chapter 4 serve different purposes and therefore

reasonably use different time periods: “In sum, ‘[t]he criminal history section is designed to punish

likely recidivists more severely, while the enhancement under § 2L1.2 is designed to deter aliens

who have been convicted of a felony from re-entering the United States.’” Id. (alteration in original)

(quoting United States v. Maul-Valverde, 10 F.3d 544, 547 (8th Cir. 1993)); see also United States

v. Lara-Aceves, 183 F.3d 1007, 1013-14 (9th Cir. 1999), overruled on other grounds by United

States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en banc). The Ninth Circuit has also stated

that “it is apparent that § 2L1.2 on its face contains no temporal limitation on the prior conviction

used to enhance sentences for illegal reentry” and also concluded that there was no implicit time

limitation. United States v. Olmos-Esparza, 484 F.3d 1111, 1116 (9th Cir.), cert. denied, ___ U.S

___, 128 S. Ct. 428 (2007). Finally, as already stated, the Tenth Circuit explicitly agreed with the

Eleventh Circuit’s determination. See Torres-Duenas, 461 F.3d at 1181-82.

We have never addressed the question of whether the time limits of § 4A1.2(e) apply to

Chapter 2, and more specifically whether they apply to § 2D1.1(a)(1). There is, however, one case

where we looked to Chapter 4 of the Guidelines to help define a term in Chapter 2. United States

v. Arnold, 58 F.3d 1117, 1120 (6th Cir. 1995) (looking to § 4B1.2 to define “crime of violence” in

§ 2K2.1(a)(4)). Arnold, therefore, shows that the words and rules of Chapter 4 do not exist in

isolation and are validly considered as part of an exegesis of Chapter 2. That said, Arnold does not

lead us to the conclusion that the time limits of Chapter 4 apply to Chapter 2. In Arnold we looked

to Chapter 4 in order to find a definition for a term that was undefined in Chapter 2; thus, we looked

to Chapter 4 because Chapter 2 was lacking an important piece of information, and Chapter 4

provided us with some guidance. In contrast, when considering whether Chapter 2 includes the time

limits of Chapter 4, we are not faced with a situation where Chapter 2 is somehow lacking important

information; Chapter 2 itself suggests that Chapter 4’s time limits do not apply as a default.

Therefore, as to the issue of time limits, Chapter 2 stands alone and does not require consideration

of Chapter 4. Given that we have never addressed this issue before, we believe that the explanations

offered by the Seventh, Ninth, Tenth, and Eleventh Circuits are persuasive, and we conclude that

there is no default time limit in Chapter 2.

Finally, our conclusion is further buttressed by the belief that there is no reason to conclude

that the time limits that the Commission created for § 4A1.2(e) were intended to signal a global

policy that disparages all use of convictions older than fifteen years. First, as we already noted, the

criminal history provisions in Chapter 4 are intended to accomplish different things than the

references to prior convictions in Chapter 2. See Gonzalez, 112 F.3d at 1330 (“In sum, ‘[t]he

criminal history section is designed to punish likely recidivists more severely, while the

enhancement under § 2L1.2 is designed to deter aliens who have been convicted of a felony from

re-entering the United States.’” (alteration in original) (citation omitted)). Second, there is not a

No. 07-1012 United States v. King Page 7

general policy against considering sentences that are fifteen years or older because in other contexts,

such as the ACCA, it is clear that we are supposed to consider those older sentences; this court, in

unpublished opinions, and many other circuits are all in agreement that the ACCA does not limit the

age of convictions that can trigger enhancements. See United States v. Howard, 216 F. App’x 463,

475 (6th Cir.) (unpublished) (“The ACCA does not exclude convictions based on remoteness in

time.”), cert. denied, 127 S. Ct. 2900 (2007); see also United States v. Sullivan, 219 F. App’x 414,

417 (6th Cir. 2007) (same); United States v. Paul, 156 F.3d 403, 404 (2d Cir. 1998) (noting that the

time limits for prior sentences under § 4A1.2 are inapplicable to sentence enhancement under the

ACCA); United States v. Wright, 48 F.3d 254, 256 (7th Cir. 1995) (agreeing with the holdings of

the Third, Fourth, Fifth, Eighth, and Eleventh Circuits that the ACCA has no time limits).

C. Rule of Lenity

If we were to find § 2D1.1(a)(1) to be ambiguous, King asks us to apply the rule of lenity

to construe in his favor any interpretation of § 2D1.1(a)(1). As we have held above, we conclude

that § 2D1.1(a)(1) unambiguously precludes the application of § 4A1.2(e)’s time limits. However,

even if we were to find some ambiguity in § 2D1.1(a)(1), there would not be enough ambiguity to

justify applying the rule of lenity. “In evaluating whether a statute is ambiguous for rule-of-lenity

purposes, it is not enough for the plain language to be unclear; only when the plain language,

structure, and legislative history provide no guidance will we apply the rule of lenity.” United States

v. Wagner, 382 F.3d 598, 610 (6th Cir. 2004). As we have demonstrated, at the very least, the

structure of Chapter 2—that provisions that intend to apply the time limits of § 4A1.2(e) explicitly

invoke Chapter 4—gives us guidance as to the meaning of § 2D1.1(a)(1) and makes the rule of

lenity inapplicable.

III. CONCLUSION

For the foregoing reasons, we hold that § 2D1.1(a)(1) contains no default time limit that

would bar consideration of convictions older than fifteen years of age. The district court correctly

applied § 2D1.1(a)(1) by including the 1984 conviction when calculating King’s base offense level.

Therefore, we AFFIRM King’s sentence.