United States v. Pruitt

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0384p.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. 06-6002

v.

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SAMSON PRUITT, -

Defendant-Appellant. -

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Appeal from the United States District Court

for the Eastern District of Tennessee at Greeneville.

No. 05-00061—J. Ronnie Greer, District Judge.

Argued: June 5, 2008

Decided and Filed: October 21, 2008

Before: MERRITT, MOORE, and ROGERS, Circuit Judges.

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COUNSEL

ARGUED: Sandra B. Jelovsek, Johnson City, Tennessee, for Appellant. Perry H. Piper,

ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee.

ON BRIEF: Sandra B. Jelovsek, Johnson City, Tennessee, for Appellant. Perry H. Piper,

ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, Robert M. Reeves,

ASSISTANT UNITED STATES ATTORNEY, Greeneville, Tennessee, for Appellee.

ROGERS, J., delivered the opinion of the court, in which MOORE, J., joined. MERRITT,

J. (pp. 10-14), delivered a separate dissenting opinion.

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OPINION

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ROGERS, Circuit Judge. In determining whether to apply the career offender provision of

the United States Sentencing Guidelines, must the federal court take into account the defendant’s

state criminal history (or lack thereof) at the time of his predicate North Carolina convictions? The

answer is yes, given the particular characteristics of North Carolina sentencing law, in light of recent

United States Supreme Court precedent.

After pleading guilty to one count of being a felon in possession of a firearm, in violation

of 18 U.S.C. § 922(g), and one count of manufacturing marijuana, in violation of 21 U.S.C. §

841(a)(1), defendant Samson Pruitt was sentenced to 262 months’ imprisonment. During

sentencing, the district court determined that Pruitt qualified as a career offender under the United

1

No. 06-6002 United States v. Pruitt Page 2

States Sentencing Guidelines on the basis of two prior drug convictions that Pruitt had sustained in

North Carolina, and for which Pruitt was sentenced to imprisonment for less than one year.

For a prior conviction to qualify as a predicate under the career offender guideline, U.S.S.G.

§ 4B1.1, the offense of conviction must have been “punishable by death or imprisonment for a term

exceeding one year.” U.S.S.G. § 4B1.2 cmt. n.1. Under North Carolina’s structured felony

sentencing scheme, the maximum punishment authorized for Pruitt’s prior offenses of conviction

depended on Pruitt’s state law “prior record level” at the time of each conviction. See N.C. Gen. St.

§ 15A-1340.17(c)-(d). In determining whether Pruitt’s prior convictions qualified as predicates, the

district court did not consider Pruitt’s prior record level, but rather considered the maximum

sentence allowable for a hypothetical defendant with the worst prior record level. Because this was

procedural error, Pruitt’s sentence must be vacated and his case remanded for resentencing.

I.

On June 23, 2005, federal and state agents, acting on information received from various

sources, executed a search warrant at Pruitt’s home. Upon entering the residence, officers found a

large indoor marijuana growing operation. The search also yielded three firearms located in an

upstairs closet and over 1,400 rounds of ammunition. After the officers read Pruitt his Miranda

rights, Pruitt admitted that he had previously been convicted of felony marijuana charges, that he

owned the marijuana operation, and that he was a regular user of marijuana and cocaine.

On July 1, 2005, Pruitt signed a written plea agreement and an agreed factual basis in which

he admitted to growing an amount of marijuana in excess of 100 plants and to possessing the three

firearms found in his home. Under the plea agreement, Pruitt agreed to plead guilty to one count

of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and to one count

of manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1). Pruitt later pled guilty to both

counts in open court on July 11, 2005. Prior to entry of Pruitt’s guilty plea, the government filed

in open court, pursuant to 21 U.S.C. § 851(a), an information giving notice of its intent to seek an

increased punishment under 21 U.S.C. § 841(b)(1)(B), on the basis that Pruitt had previously been

convicted of felony drug offenses.

The probation department prepared a presentence report detailing Pruitt’s exposure under

the sentencing guidelines. With respect to the § 922(g) count, the report calculated a base offense

level of 24 because Pruitt had two prior felony controlled substance convictions. This base offense

level was increased by two levels because Pruitt possessed three firearms, resulting in an offense

level of 26. With respect to the § 841(a)(1) count, the presentence report calculated an offense level

of 16. Under the guidelines grouping rules, this yielded a total combined offense level of 26.

However, because Pruitt had previously been convicted of two prior felony controlled substance

offenses in North Carolina, the presentence report concluded that Pruitt was a career offender under

U.S.S.G. § 4B1.1. As a result, Pruitt’s offense level was adjusted upward to 37. With a three-level

downward adjustment for acceptance of responsibility, the report settled on an offense level of 34.

Due to his status as a career offender, Pruitt’s criminal history category was calculated to be VI.

With the offense level of 34, this yielded an advisory guidelines range of 262-327 months’

imprisonment.

After receiving the presentence report, Pruitt filed an objection to its career offender

determination. Pruitt asserted that the prior convictions relied upon in the report did not qualify as

predicates under § 4B1.1 because those convictions were not for offenses “punishable” by a term

of imprisonment exceeding one year. On July 10, 2006, the district court entered a written order

overruling Pruitt’s objection and concluding that the relevant prior offenses of conviction were

qualifying predicates. The district court reasoned that the relevant North Carolina sentencing statute

authorized a sentence of up to 15 months’ imprisonment for Pruitt’s prior offenses of conviction,

No. 06-6002 United States v. Pruitt Page 3

and that Pruitt’s particular prior record level at the time of each conviction was irrelevant to the

analysis.

On July 17, 2006, the district court held a sentencing hearing. After accepting the advisory

guidelines calculations in the presentence report, including the application of the career offender

enhancement, the court sentenced Pruitt to a total term of 262 months’ imprisonment—120 months

for the § 922(g) count and 262 months for the § 841(a) count, to run concurrently.

II.

Because the district court did not account for Pruitt’s prior record level under North Carolina

law in determining whether Pruitt’s two prior North Carolina convictions were “punishable by . .

. imprisonment for a term exceeding one year,” Pruitt’s sentence must be vacated and remanded.

In the context of North Carolina’s structured sentencing scheme, an offense of conviction is

“punishable” for a term exceeding one year only if the state court could have sentenced a

hypothetical defendant with the same prior record level as the defendant’s prior record level to a

term exceeding one year.

Under U.S.S.G. § 4B1.1, a defendant qualifies as a career offender if, among other things,

“the defendant has at least two prior felony convictions of either a crime of violence or a controlled

substance offense.” § 4B1.1(a). In turn, § 4B1.2 defines “prior felony conviction” to mean

a prior adult federal or state conviction for an offense punishable by death or

imprisonment for a term exceeding one year, regardless of whether such offense is

specifically designated as a felony and regardless of the actual sentence imposed.

§ 4B1.2 cmt. n.1. The district court deemed Pruitt a career offender on the basis of two prior

convictions that Pruitt sustained in North Carolina in 1998 and 2003. Both convictions were

obtained pursuant to N.C. Gen. St. § 90-95(a)(1), which proscribes selling, manufacturing,

delivering, or possessing with intent to sell, manufacture, or deliver, a controlled substance. Under

§ 90-95(b)(2), Pruitt’s conduct with respect to both convictions was punishable as a Class I felony.

Unlike many substantive criminal statutes, however, the relevant provisions of § 90-95 do not

prescribe a statutory maximum punishment for the offense. Rather, the maximum punishment is

determined by reference to the structured felony sentencing scheme set out in N.C. Gen. St. § 15A-

1340.17.

Under § 15A-1340.17, unless otherwise provided in a statute prescribing a specific

punishment, the statutory maximum sentence for any given felony offense is derived based on two

factors: (1) the defendant’s “prior record level” as calculated under state law; and (2) whether the

aggravated, presumptive, or mitigated sentencing range applies. See § 15A-1340.17(c)-(d). The

defendant’s prior record level (I-VI) is generally determined by “calculating the sum of the points

assigned to each of the [defendant’s] prior convictions.” N.C. Gen. St. § 15A-1340.14(a). A

sentence outside the presumptive range is permissible if the court determines that an aggravated or

mitigated sentence is justified in light of the facts and circumstances of the case. § 15A-

1340.17(c)(3)-(4). At the time of Pruitt’s two convictions, North Carolina law permitted judicial

fact-finding of the aggravating factors necessary to impose an aggravated sentence. See State v.

Lucas, 548 S.E.2d 712, 731 (N.C. 2001) (defining the statutory maximum for Apprendi purposes to

include the aggravated sentencing range). In 2005, however, following Blakely v. Washington, 524

U.S. 296 (2004), the North Carolina Supreme Court held that such judicial fact-finding violated the

Sixth Amendment to the United States Constitution. State v. Allen, 615 S.E.2d 256, 264-66 (N.C.

2005). Thus, after Allen, any aggravating factor used to impose a sentence beyond the presumptive

range must be found by a jury beyond a reasonable doubt or admitted by the defendant. The relevant

No. 06-6002 United States v. Pruitt Page 4

sentencing statute was amended in 2005 to reflect Allen. See N.C. Gen. St. § 15A-1340.16(a)-(a1);

S.L. 2005-145, § 1 (N.C. 2005).

The structure of the North Carolina scheme effectively tailors the statutory maximum

punishment available to each individual defendant. For a Class I felony, a hypothetical defendant

with the worst prior record level (VI) is subject to a maximum term of imprisonment of 15 months

under the aggravated range. That same defendant is subject to a maximum sentence of 12 months’

imprisonment under the presumptive range, and to a maximum sentence of 10 months under the

mitigated range. Conversely, a hypothetical defendant with the lowest prior record level (I) is

subject to a maximum term of imprisonment of 10 months under the aggravated range. That same

defendant is subject to a maximum sentence of 8 months under the presumptive range, and to a

maximum sentence of 5 months under the mitigated range. See § 15A-1340.17(c)-(d).

In sentencing Pruitt as a career offender, the district court determined that both of Pruitt’s

prior North Carolina convictions were “punishable” by a term of imprisonment exceeding one year

because a hypothetical Class I felon with the worst prior record level could be sentenced to 15

months’ imprisonment under the aggravated range. Pruitt contests this determination on appeal.

He argues that his two prior North Carolina convictions do not qualify as predicates under the career

offender guideline because, in light of his particular circumstances at the time of each conviction,

he was not exposed to a sentence that exceeded one year of imprisonment. Pruitt bases this

argument on three grounds, the third of which has merit. That is, the district court was required to

consider Pruitt’s prior record level at the time of his predicate convictions. Before reaching that

ground, we dispose of Pruitt’s first two contentions, which would require the district court to

consider that Pruitt allegedly could not have been sentenced under the aggravated range in

connection with his predicate convictions.

Pruitt’s first contention is based on the fact that, for a Class I felony, a defendant may be

sentenced to a term of imprisonment exceeding 12 months only if a sentence within the aggravated

range is imposed. (Indeed, under the North Carolina scheme, a sentence exceeding one year is

authorized for a Class I felony only if the defendant is subject to the aggravated sentencing range

and has a prior record level of V or VI.) See § 15A-1340.17(c)-(d). Pruitt contends that, because

aggravated sentences under the North Carolina scheme were precluded by the North Carolina

Supreme Court in State v. Allen, his prior Class I felony convictions cannot possibly qualify as

predicate convictions for purposes of § 4B1.1. But Pruitt’s argument misreads Allen. It is true that,

in Allen, the North Carolina Supreme Court held, following Blakely, that it is unconstitutional under

the Sixth Amendment for a judge to find aggravating factors to enhance a sentence beyond the

presumptive sentencing range. 615 S.E.2d at 264-66. However, the Allen decision did not

altogether preclude the imposition of aggravated sentences in North Carolina. Pruitt’s argument

fails to account for the fact that judicial fact-finding is not the only means by which an aggravated

sentence could be imposed. In fact, and as explicitly acknowledged in Allen, an aggravated sentence

remains possible under North Carolina law in circumstances where either (1) the jury finds the

aggravating factors beyond a reasonable doubt, or (2) the defendant admits to the aggravating

factors. See Allen, 615 S.E.2d at 265 (noting that “under Blakely the judge may still sentence a

defendant in the aggravated range based upon the defendant’s admission to an aggravating factor”);

see also § 15A-1340.16(a)-(a1) (amended/added by S.L. 2005-145 to provide that a jury must find

aggravating factors beyond a reasonable doubt unless the defendant admits to such factors). It is

only where judicial fact-finding leads to an aggravated sentence that Allen (and now § 15A-1340.16)

precludes such sentences.

Second, Pruitt argues that, in any event, there were no aggravating factors present with

respect to his prior convictions. Accordingly, Pruitt contends that he could not have received a

sentence within the aggravated range. But whether Pruitt was actually sentenced to the aggravated

range or could have been sentenced to the aggravated range is not pertinent to the determination of

No. 06-6002 United States v. Pruitt Page 5

whether his prior convictions were “punishable” by a term exceeding one year. Under North

Carolina law, Pruitt could have faced the aggravating factors necessary to impose a sentence within

the aggravated range. Consequently, under that regime, the presumptive sentencing range served

as the functional equivalent of a “guidelines range,” above which the sentencing judge could depart

under certain circumstances. Any such upward adjustment, however, could not exceed the

maximum sentence authorized by the aggravated range. In effect then, the top of the aggravated

range, and not the presumptive range, served as the “statutory maximum” for Pruitt’s prior

convictions, irrespective of whether an aggravated sentence was imposed in Pruitt’s case. This

conclusion is consistent with the Tenth Circuit’s holding in United States v. Norris, 319 F.3d 1278,

1281-82 (10th Cir. 2003), that the possibility of an upward departure under Kansas’s sentencing

scheme rendered a conviction punishable for more than one year for purposes of a 18 U.S.C. §

922(g) conviction, even though the defendant’s maximum presumptive sentence had been less than

one year and no upward departure had been imposed.

Our conclusion above finds additional support in an analogous case in which the Supreme

Court distinguished a state guidelines scheme from a state recidivism enhancement. In United States

v. Rodriquez, 128 S. Ct. 1783 (2008), the Supreme Court addressed the question of whether a

statutory recidivism enhancement should be accounted for in determining, under the Armed Career

Criminal Act (ACCA), the “maximum term of imprisonment . . . prescribed by law” for a prior

offense of conviction. Id. at 1786-87. Although Rodriquez involved the ACCA rather than the

career offender guideline, its analysis is nonetheless persuasive in this case. Under the ACCA, a

prior conviction qualifies as a “serious drug offense” if “‘a maximum term of imprisonment of ten

years or more is prescribed by law’ for the ‘offense.’” Id. at 1786 (quoting 18 U.S.C.

§ 924(e)(2)(A)(ii)). At the time of the defendant’s prior convictions, the relevant criminal statute

prescribed a statutory maximum of five years’ imprisonment, but a second statutory provision

provided for a recidivism enhancement that doubled the statutory maximum to ten years for a second

or subsequent offense. Id. at 1786-87. In addition to the prescription of those maximum

punishments in the relevant criminal statutes, Washington’s sentencing scheme featured a mandatory

guidelines system under which a standard sentencing range was calculated. Id. at 1792. At the time

of the defendant’s prior convictions, the sentencing judge had authority to “‘impose a sentence

outside the standard sentence range’ upon a finding ‘that there [were] substantial and compelling

reasons justifying an exceptional sentence.’” Id. (quoting Wash. Rev. Code § 9.94A.120(2) (1994)).

The Supreme Court ultimately held that the recidivism statutory provision could be accounted for

in determining the maximum term of imprisonment authorized for the offense. But the Court

rejected the defendant’s contention that the top of the standard sentencing guideline range should

instead be considered the “maximum term” of imprisonment. Id. After noting that the Washington

scheme in operation at the time of the defendant’s prior convictions allowed the sentencing judge

to adjust a sentence above the standard sentencing range up to the maximum sentence authorized

by the relevant criminal statutes, the Court concluded that the concept of “maximum” term of

imprisonment is better understood as referring to “the maximum term prescribed by the relevant

criminal statute, not the top of a sentencing guideline range.” Id.

Though the criminal statute at issue in this case does not itself prescribe a statutory maximum

term of imprisonment, Rodriquez remains instructive. Under North Carolina law, Pruitt faced a

possible sentence above the presumptive range if aggravating factors were found. Still, any upward

adjustment could not exceed the top of the aggravated range. Thus, the presumptive range in the

North Carolina scheme that Pruitt faced was analogous to the standard sentencing guideline range

described in Rodriquez. And the maximum aggravated sentence under the North Carolina scheme

served as the “statutory maximum” because the judge could not impose a sentence above that

maximum.

Pruitt’s third and final argument, however, has merit. The district court erred in failing to

account for Pruitt’s prior record level at the time of his predicate convictions in determining whether

No. 06-6002 United States v. Pruitt Page 6

those convictions qualified as predicates under § 4B1.1. As discussed, the maximum sentence

authorized for a Class I felony depends on the prior record level of each defendant. A defendant

who has a prior record of less than V cannot be sentenced to a term of imprisonment exceeding one

year, regardless of whether he or she is sentenced in the aggravated, presumptive, or mitigated

sentencing range. The use of a defendant’s prior record level in the determination of a maximum

sentence reflects a clear legislative judgment to vary a defendant’s sentencing exposure based on

criminal history. And unlike the imposition of an aggravated sentence, the determination of Pruitt’s

prior record level was not a matter left to the wide discretion of the sentencing judge.1 Thus, under

the North Carolina scheme, a defendant’s criminal history has a significant effect on the maximum

sentence authorized, and it was error for the district court not to consider Pruitt’s prior record level

in determining whether Pruitt’s convictions were for an offense “punishable” by a term of

imprisonment exceeding one year.

Rodriquez provides persuasive authority in this regard. In holding that the recidivism

statutory provision could be accounted for in determining the maximum term of imprisonment

authorized for the offense, the Supreme Court clearly indicated that consideration of that

enhancement was proper only in circumstances where the particular defendant actually faced the

possibility of the enhancement. Rodriquez, 128 S. Ct. at 1791. In Part III.C. of the opinion, the

Court addressed the defendant’s contention that making such a determination in every case would

be difficult. The Court dismissed the defendant’s contention as “greatly exaggerate[d]” for a number

of reasons, and concluded its discussion with an observation that “in those cases in which the

records that may properly be consulted do not show that the defendant faced the possibility of a

recidivist enhancement, it may well be that the Government will be precluded from establishing that

a conviction was for a qualifying offense.” Id. The Court’s observation clearly conveys its

understanding that the recidivism enhancement can be accounted for in determining the “maximum

term of imprisonment” under the ACCA only if the particular defendant was subject to the

enhancement. Indeed, although Rodriquez had been convicted under the same Washington statute

three times, the government appeared to argue only that the latter two convictions should count for

ACCA purposes. See id. at 1787 (“The Government also argued that at least two of respondent’s

Washington drug convictions were for ‘serious drug offense[s].’”). The government’s argument and

the Court’s analysis therefore accepted that Rodriquez’s first conviction under the same Washington

statute was not a qualifying offense because, given Rodriquez’s criminal history, the first conviction

was punishable by only five years in prison.

There is no reasonable basis on which to distinguish the North Carolina scheme’s

consideration of a defendant’s prior record level and the recidivism enhancement provision at issue

in Rodriquez. Under each, the prior criminal record of the defendant operates to increase the

defendant’s sentencing exposure, reflecting a legislative judgment to authorize harsher criminal

penalties for persons who have previously engaged in criminal activity. In Rodriquez, the Court

made clear that two of the defendant’s prior Washington convictions carried a maximum sentence

of ten years because the defendant himself was subject to the recidivism enhancement. In Pruitt’s

case, the relevant substantive criminal statute does not itself prescribe a maximum punishment.

Instead, the maximum punishment is derived under the North Carolina structured scheme. Under

1

As noted above, a defendant’s prior record level is generally determined by “calculating the sum of the points

assigned to each of the [defendant’s] prior convictions.” § 15A-1340.14(a). Prior to the 2005 amendments to the North

Carolina sentencing scheme, a sentencing judge could, under limited circumstances, assess prior record level points

based on its own findings of facts other than the fact of prior conviction. Points could be assessed if the offense was

committed while the defendant was (1) on probation, parole, or post-release supervision, or (2) serving a sentence of

imprisonment or on escape from a correctional institution. See § 15A-1340.14(b)(7). These circumstances involve facts

closely related to the fact of prior conviction, and thus do not involve the sort of discretion associated with judicial fact-

finding of aggravating factors. The 2005 amendments now require § 15A-1340.14(b)(7) facts to be found by a jury or

admitted by the defendant. See § 15A-1340.16(a5).

No. 06-6002 United States v. Pruitt Page 7

that scheme, Pruitt’s state prior record level dictates his sentencing exposure and, consequently, it

must be considered in determining whether Pruitt’s convictions were “punishable” for a term

exceeding one year.

As expressed in Rodriquez, requiring the district court to consider a defendant’s prior record

level will not significantly burden sentencing proceedings. In some cases, the defendant’s prior

record level will be evident from the length of the sentence imposed. In others, the judgment of

conviction or plea colloquy will list the prior record level. Finally, in those cases where the relevant

records do not indicate the defendant’s prior record level, “it may well be that the Government will

be precluded from establishing that a conviction was for a qualifying offense.” Id. at 1791.

Finally, we recognize that our decision here is in some tension with holdings of the Fourth

Circuit. That circuit has held, in the context of the same North Carolina sentencing scheme, that “to

determine whether a conviction is for a crime punishable by a prison term exceeding one year, . .

. we consider the maximum aggravated sentence that could be imposed for that crime upon a

defendant with the worst possible criminal history.” See United States v. Harp, 406 F.3d 242, 246

(4th Cir. 2005). Harp, however, was decided prior to Rodriquez. But see United States v. Lemons,

280 F. App’x 258 (4th Cir. 2008) (post-Rodriquez case relying on Harp with no discussion of

Rodriquez). And because Rodriquez persuades us that it is necessary to consider the defendant’s

particular prior record level—and not merely the worst prior record level—in determining whether

a conviction was for an offense “punishable” by a term exceeding one year for purposes of §§ 4B1.1

and 4B1.2, we conclude that the district court in this case committed procedural error in calculating

Pruitt’s sentencing guidelines range. See Gall v. United States, 128 S. Ct. 586, 597 (2007). We note

that the district court’s sentencing determination was obviously made without benefit of the later

Rodriquez decision.

For the foregoing reasons, Pruitt’s sentence must be vacated and remanded. The record is

not sufficient for this court to determine whether, at the time of each of Pruitt’s two North Carolina

convictions, Pruitt’s prior record level was high enough to warrant a sentence exceeding one year.

Additionally, the record indicates that the two convictions at issue here may not be the only prior

convictions that potentially qualify as predicate convictions under § 4B1.1. For example, Pruitt has

conceded that a prior drug conviction in Georgia qualifies as a prior felony conviction for purposes

of the 21 U.S.C. § 841(b)(1)(B) enhancement, and also for purposes of his 18 U.S.C. § 922(g)(1)

conviction. It is possible that this conviction, or others listed in the presentence report, might qualify

as a predicate conviction for2purposes of § 4B1.1. The district court may give further consideration

to these matters on remand.

III.

In his brief, Pruitt asserts additional arguments related to his sentence. Although we vacate

Pruitt’s sentence, we address two of those arguments to provide guidance to the district court on

remand.3 First, Pruitt argues that the government failed to comply with the notice procedures set

out in 21 U.S.C. § 851(a). As a consequence of Pruitt’s pleading guilty to 21 U.S.C. § 841(a)(1) and

2

We also note that the presentence report assessed a base offense level of 26 for Pruitt’s § 922(g) conviction

by relying, in part, on the same two prior North Carolina convictions that it relied on in assessing the career offender

enhancement. The relevant guideline for the § 922(g) conviction, U.S.S.G. § 2K2.1, defines “felony conviction” in terms

almost identical to the definition of “prior felony conviction” in § 4B1.2. See § 2K2.1 cmt. n.1; §4B1.2 cmt. n.1. Thus,

on remand, the analysis with respect to § 4B1.1 appears to apply with equal force to the determination of Pruitt’s

sentencing exposure under § 2K2.1.

3

In addition to the arguments discussed here, Pruitt asserts other arguments related to the reasonableness of

his sentence. In light of the remand, there is no reason to address those arguments.

No. 06-6002 United States v. Pruitt Page 8

admitting to growing an amount of marijuana in excess of 100 plants, the prior commission of a

felony drug offense would raise Pruitt’s statutory sentencing range under 21 U.S.C. § 841(b)(1)(B)

from a range of 5-40 years to a range of 10 years to life. Under 21 U.S.C. § 851(a), such an increase

cannot be imposed, however, unless the government, before entry of a plea of guilty or trial, has

filed an information with the court stating in writing the previous convictions relied upon for the

enhancement. This is significant to the career offender guideline analysis because, under § 4B1.1,

the offense level is 37 for an offense that carries a statutory maximum of life, and 34 for an offense

that carries a statutory maximum of 25 years or more. If the government did not properly comply

with the notice procedures set out in § 851, Pruitt’s offense level under the career offender

guideline—if the district court again determines that that guideline is indeed applicable in Pruitt’s

case—would be 34 instead of 37. Pruitt contends that because he entered a plea of guilty at

approximately 11 a.m. on July 11, 2005, and because the government did not “file” the information

until 1:32 p.m. later that day, the government did not meet the requirements of § 851. This argument

lacks merit.

The government tendered the § 851 information to the district court at the beginning of the

rearraignment hearing, before Pruitt entered his guilty plea. Counsel for Pruitt acknowledged at the

rearraignment hearing that she had previously received the § 851 information from the government,

and stated that she had “not been able to provide that [information] to [Pruitt], but I will lay it in

front of him at this moment and he can review that.” Counsel also stated with respect to the

information, “If I could object, I would, Your Honor, but I can’t.” Thereafter, Pruitt pled guilty to

the 21 U.S.C. § 841(a)(1) offense. The clerk then docketed the § 851 information at 1:32 p.m.

As the government points out, this court and others have rejected arguments similar to

Pruitt’s. In United States v. Butler, 137 F. App’x 813, 815-16 (6th Cir. 2005), this court concluded

in an unpublished decision that the requirements of § 851 were met where the government filed the

information in open court prior to trial, but the clerk did not enter the information on the docket until

after trial had begun. Because “both the transcript of the pre-trial conference and the certificate of

service on the § 851 information” indicated that notice was served prior to trial, the fact that the

information was entered on the docket after trial was “immaterial.” Id. at 816; see also United States

v. Weaver, 905 F.2d 1466, 1481 (11th Cir. 1990) (no § 851 violation where the information was

docketed four days after trial commenced because the record indicated that counsel for defendant

actually received the information before trial began). The transcript of the arraignment hearing in

this case similarly indicates that Pruitt and his counsel received the information at the rearraignment

hearing prior to his plea of guilty. Thus, Pruitt had “reasonable notice and an opportunity to be

heard regarding the possibility of an enhanced sentence,” see United States v. Pritchett, 496 F.3d

537, 548 (6th Cir. 2007) (quoting United States v. King, 127 F.3d 483, 489 (6th Cir. 1997)), and it

is immaterial that the clerk entered the information on the docket after Pruitt pled guilty. Because

Pruitt received sufficient notice under 21 U.S.C. § 851(a), the district court is not precluded, on

§ 851 notice grounds, from applying an offense level of 37 under § 4B1.1 if it determines that the

career offender enhancement applies.

Second, Pruitt contends that his due process rights were violated because he was not

provided with sufficient notice that he was subject to the career offender enhancements under the

sentencing guidelines. This argument is also unavailing. As part of his argument, Pruitt contends

that due process requires that the notice requirements of 21 U.S.C. § 851 be extended to career

offender enhancements under the sentencing guidelines. As argued by the government and

acknowledged by Pruitt, however, that argument has previously been rejected in this circuit. See

United States v. Mans, 999 F.2d 966, 969 (6th Cir. 1993). Moreover, in United States v. Herrera,

375 F.3d 399, 407 (6th Cir. 2004), this court rejected a due process argument similar to Pruitt’s

where the defendant had (1) been informed in the plea agreement that he may qualify as a career

offender based on his criminal record, and (2) received, weeks prior to the sentencing hearing, the

presentence report that recommended sentencing as a career offender. See also United States v.

No. 06-6002 United States v. Pruitt Page 9

Wilhite, No. 90-5931, 1991 WL 46512, at *1 (6th Cir. Apr. 4, 1991) (“Concerns for due process do

not require that a criminal defendant be placed on advance notice of the application of a career

offender sentence under guideline 4B1.1, so long as the defendant has, as he was in the instant case,

been afforded an adequate opportunity to challenge the factual basis for applying the

enhancement.”). Here, the plea agreement informed Pruitt that “the sentencing determination will

be based on the entire scope of the defendant’s criminal conduct, defendant’s criminal history, and

pursuant to other factors and guidelines as set forth in the Sentencing Guidelines and the factors set

forth in 18 U.S.C. § 3553.” Further, the presentence report expressly recommended that Pruitt be

sentenced as a career offender, and Pruitt was afforded, and indeed will again be afforded, adequate

opportunity to challenge that assessment in a sentencing proceeding. Pruitt has thus failed to

establish any constitutional error in this regard, and the district court is not precluded, on due

process grounds, from assessing the career offender enhancement.

IV.

For the reasons stated in Part II, supra, we vacate Pruitt’s sentence and remand for

resentencing consistent with this opinion.

No. 06-6002 United States v. Pruitt Page 10

________________

DISSENT

________________

MERRITT, Circuit Judge, dissenting. The “career offender” designation in this case –

turning the two minor and remote North Carolina convictions into “felonies” – would make a

difference of approximately 15 years in Pruitt’s sentence. I dissent not because I disagree that the

district court erred in using the highest “prior record level” under North Carolina’s sentencing

scheme in finding that Pruitt was a “career offender,” but because I would remand with clear

instructions to the district court that Pruitt cannot be sentenced as a “career offender.” We should

not reopen the door to a “career offender” sentence for three separate reasons: (1) The North

Carolina sentencing statute does not permit Pruitt to be punished for a felony; (2) United States

Supreme Court sentencing case law prohibits a federal court from going outside a narrow set of facts

to make a “career criminal” sentencing designation, and (3) The rule of lenity requires in this case

the use of the federal sentencing date instead of the state sentencing date when calculating whether

Pruitt is a “career criminal.”

I. The North Carolina Sentencing Statute and the Federal “Career Criminal” Designation

I can think of no legitimate argument based on the record — and neither the majority nor

the government suggests such an argument — whereby the district court could on remand use

Pruitt’s prior convictions to now designate Pruitt as a career offender. The convoluted nature of the

U.S. Sentencing Guidelines concerning the “career offender” designation, §§ 4B1.1 and 4B1.2, is

such that in order to understand this case we must first understand the North Carolina sentencing

law, §§ 15A-1340.14 through 15-1340.17. North Carolina’s structured sentencing scheme employs

a grid that resembles the federal Sentencing Guidelines, with the “class of offense” for state

convictions comparable to the “offense level” under the federal system and the “Prior Record Level”

comparable to the “criminal history category” for recidivist offenders. N.C. Gen. Stat. § 15A-

1340.17. Each offense level has three categories: mitigated, presumptive and aggravated. N.C.

Gen. Stat. § 15A-1340.17(c). Each category prescribes a sentencing range, depending upon under

which “prior record level” the defendants falls. The following subsection in the statute dictates the

“maximum statutory sentence” that may be imposed upon a defendant falling within a specific

range. N.C. Gen. Stat. § 15A-1340.17(d) (“for each minimum term of imprisonment in the chart in

subsection (c) of this section, expressed in months, the corresponding maximum term of

imprisonment, also expressed in months, is as specified in the table below for Class F through Class

I felonies. The first figure is the minimum term [from subsection (c)] and the second is the

maximum term.”)

The two minor offenses for which Pruitt was given short sentences in 1998 and 2003 are at

the very bottom of the grid — offenses that fall within Class I, which follows after Classes A

through H. Under that chart, the “presumptive” sentence for each offense is a misdemeanor. Under

North Carolina’s sentencing scheme, Pruitt’s sentencing range in subsection (c) under the

“presumptive” category for an offender with the highest “prior record level” is 8-10 months.

Looking to subsection (d) for the “maximum sentence,” we find that 12 months is the maximum

term allowed for a Class I felony with a range from subsection (c) of 8-10 months. The only way

to reach a 15-month maximum sentence for a Class I felony – and therefore to qualify the predicate

convictions as felonies for purposes of applying the career offender enhancement in the federal

Guidelines – is for the offender’s sentencing range to be in the “aggravated” category under

subsection (c). In order for either of Pruitt’s North Carolina offenses to be classified as punishable

for more than one year under the “career offender” provision of the U.S. Sentencing Guidelines, the

North Carolina sentencing court would have to find as a fact a series of North Carolina “aggravators

under § 1340.17, which the North Carolina court did not find at the time of sentencing and do not

No. 06-6002 United States v. Pruitt Page 11

exist in our record or any record in any federal or state court subject to judicial notice and use by

us in this case. Because aggravators were not present in the two prior state convictions and it would

be impermissible for a North Carolina state judge to find such aggravators were Pruitt sentenced for

the same crimes today, it is contrary to law to find that an “aggravated” sentence should serve as the

“maximum punishment authorized” for Pruitt’s state convictions. See Blakely v. Washington, 542

U.S. 296 (2004).

At the time Pruitt was sentenced for the 1998 and 2003 convictions in North Carolina, the

sentences could only have exceeded one year if the North Carolina sentencing judge had found that

the state met its “burden of proving beyond a reasonable doubt that [certain] aggravating factor[s]

exist, such as “(7) the offense was especially heinous . . .” or “(10) the defendant was armed . . .”

as required by the preceding §1340.16. No one has ever suggested that any such aggravator is or

was present and the government concedes that they were not. No such aggravator was charged by

the state, as required by state law, or found by the state sentencing judge. So I do not see why we

are remanding to the district court with an opinion and order that gives the district court open-ended

authority to sentence Pruitt as a “career offender.”

I do not agree that the maximum sentence for the entire offense class, that is, a sentence that

requires a finding of aggravators regardless of whether such aggravating factors have been found

by a jury to exist or admitted in the case of a particular defendant, can serve as the maximum

allowable sentence for purposes of determining career offender status. That is what the majority

opinion allows in this case. In the absence of a jury finding or a guilty plea, the highest possible

statutory sentence under North Carolina law is the statutory maximum for the “presumptive” range,

which provides for a maximum sentence of 12 months. Blakely v. Washington, 542 U.S. 296 (2004);

State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005). The North Carolina Supreme Court has held

that the maximum possible sentence for an offender, like Pruitt, in the category of “no finding of

aggravating circumstances” is the “presumptive” range with its absolute maximum sentence of 12

months.

The majority seems to rely on United States v. Rodriquez, 128 S. Ct. 1783 (2008), to find that

the maximum sentence for a Class I felony under North Carolina law is the maximum allowed for

the “aggravated,” not “presumptive,” range. As the Supreme Court explained, however, the

“concept of the ‘maximum’ term of imprisonment or sentence prescribed by law . . . necessarily

referred to the maximum term prescribed by the relevant statute . . . .” 128 S. Ct. at 1792 (emphasis

added). The only “relevant” statute in this case involves the maximum sentence correlating to the

top of the “presumptive” range for Class I felonies in North Carolina – 12 months. N.C. Gen. Stat.

§ 15A-1340.17(d).

To the extent it is relevant at all to this situation, Rodriquez supports Pruitt’s argument that

when the statute in question contains multiple “maximum” sentences depending on some

categorization of the offender based on conduct, the sentencing court should look to the facts and

circumstances of that conviction to determine which maximum sentence applies for purposes of the

career offender enhancement. Rodriquez held only that the applicable maximum sentence for

purposes of federal sentencing is that prescribed by the underlying criminal statute, as opposed to

the sentence the defendant actually received or the top of the specified guidelines range, as

Rodriquez argued.

The Court did not hold that there can be only one applicable “maximum” sentence for the

offense class and it must be the highest level possible for any defendant. Rodriquez directs the

federal sentencing court to look to the underlying state statute. If the statute prescribes more than

one maximum sentence for different categories of defendants, the court should look to the

appropriate factors surrounding the individual defendant’s prior convictions to determine if the

convictions qualify for purposes of enhancing the federal sentence – just as the majority argues

No. 06-6002 United States v. Pruitt Page 12

should be done to determine Pruitt’s prior record level under North Carolina law. Nothing in

Rodriquez allows the federal sentencing court to look beyond the known facts in the record of the

particular defendant’s prior conviction to enhance it so as to allow a higher “maximum sentence”

to be used for career offender purposes. Here, the government concedes that Pruitt falls within the

“No Aggravating Factors” category within the Class I felony statute. Further support for this

reading of Rodriquez as it applies to the career offender enhancement is found in an Application

Note to U.S.S.G. § 4B1.2, the definition section for the terms used in § 4B1.1. The Note explains

that in determining whether an offense is a crime of violence or a controlled substance for the

purposes of § 4B1.1, the “conduct of which the defendant was convicted” is the focus of the inquiry.

U.S.S.G. § 4B1.2 cmmt. n2.

In any event, Rodriquez did not directly address the issue in this case – whether an

aggravated or non-aggravated sentence should serve as the statutory maximum sentence under a

multi-tier scheme based on conduct, such as North Carolina’s. Rodriquez did not raise the Sixth

Amendment issue of whether an aggravated sentence can serve as the statutory maximum when no

aggravators were present at the time of sentencing and where the state sentencing court would be

prohibited from finding such aggravators today under Blakely and Allen. Rodriquez does not alter

the conclusion that the maximum possible sentence under North Carolina law to which a Class I

offender in the category of “no finding of aggravating circumstances” is the statutory maximum for

the presumptive range.

The highest maximum sentence to which Pruitt was subject as a Class I felony offender with

no finding of aggravating circumstances was exactly 12 months , even if it could be determined that

he should be placed in the highest “prior record level” category (Level VI). Therefore, the only way

that Pruitt can be found to be a “career offender” is if the district court finds that his prior record

level under North Carolina law is at the maximum level of VI and if the dispositions of his Class I

offenses fall within the “aggravated” range instead of the “presumptive” range of North Carolina’s

three-tier system for categorizing offenses within each class. Because I see no basis for allowing

the “aggravated” maximum sentence to be used in this case instead of the maximum sentence under

the “presumptive” range with no aggravators, I see no reason to direct the district court to engage

in the unknowable task of determining Pruitt’s “prior record level” under North Carolina law.

Based on the fact that there is no basis to find that Pruitt’s maximum sentence could have

exceeded 12 months regardless of his prior record level, I find a remand unnecessary. Under no

circumstances present in this case should the district court be allowed to use the “aggravated” range

to determine Pruitt’s prior sentences under North Carolina law. If the district court is confined to

finding that the maximum allowable sentence Pruitt could have received for his prior Class I

offenses fall within the “presumptive” range, there is no way that Pruitt’s prior sentences could have

exceeded one year and the possibility of sentencing him in federal court as a “career offender”

becomes impossible.

II. Supreme Court Case Law Prevents Going Outside the Record

Although I do not believe we need to even address Pruitt’s prior record level because he

should be exposed to no sentence exceeding 12 months regardless of his prior record level, I agree

that the district court erred in assuming the worst possible prior record level for Pruitt under North

Carolina’s recidivist statute instead of making an individualized finding as to Pruitt based on his

record under North Carolina law. However, looking back today, I see no way to determine Pruitt’s

“prior record level” with any accuracy. The determination would require the district court to find

unknowable factual answers to unknowable questions. We do not even know what facts, if any, the

North Carolina judges used years ago to calculate the “prior record level,” or whether such a

calculation was made, or who made the calculations, if anyone, or how one would now go about

reconstructing whatever it is that would have constituted Pruitt’s unknown “prior record level.” And

No. 06-6002 United States v. Pruitt Page 13

to make matters worse, Supreme Court case law forbids federal district courts in “career offender”

cases from calculating a state law sentence based on facts outside the record. Federal district courts

may “look only to the fact of conviction and the statutory definition of the prior offense,” and they

may not “determine what the conduct was or try to reconstruct facts” that would determine the “prior

record level.” Taylor v. United States, 495 U.S. 575, 601-02 (1990). Federal courts “must avoid

subsequent evidentiary enquiries into the factual basis for the earlier conviction,” and they may not

resolve “disputed findings of fact about what the defendant and the state judge understood as the

factual basis of the prior plea.” Shepard v. United States, 544 U.S. 13, 20, 25 (2005).

III. The Rule of Lenity Applied to This Case

Even if somehow the state judge sentencing Pruitt in 1983 or 2003 could have found some

aggravators that could have converted his sentence from the “presumptive” to the “aggravated”

range, we should be foreclosed from doing that now under Allen and North Carolina statutory

amendments implementing Allen that prohibit any such finding of an aggravator not found by a jury

or admitted by defendant. The U.S. Sentencing Guidelines do not specify a date on which the

district court should rely to find whether prior state convictions qualify for federal enhancements

like the career offender enhancement.

Moreover, we have no basis to assume the state conviction date, instead of the federal “career

offender” sentencing date, is the appropriate date for determining whether the state law “penalty”

is a “felony” for “career offender” purposes or a misdemeanor. With such confusion as to how a

federal court would go about establishing Pruitt’s “prior record level” under North Carolina law for

the purposes of the federal career offender guideline, we cannot direct or guide the district court.

It is clear that in the construction of penal laws where there is an ambiguity as to the nature of the

penalty to be used to calculate such things as “career offender” status, the common-law-inspired rule

of lenity should be applied. And for “career criminal” purposes, the federal sentencing judge should

use the penalty at the lesser end of the ambiguity scale rather than the greater. The rule of lenity

was correctly applied by our court in the “career criminal” context in United States v. Morton, 17

F.3d 911 (6th Cir. 1994), by Judge Kennedy for a unanimous panel. Judge Kennedy pointed out that

“if the defendant were sentenced today he could not be” classified as a career criminal. Both the

former state penalty law and the federal law were “ambiguous.” “The question is at least

ambiguous,” she held, and “therefore, under the rule of lenity, should be resolved in defendant’s

favor.” She then quoted from United States v. Bass, 404 U.S. 336, 348 (1971): “Where there is

ambiguity in a criminal statute, doubts are resolved in favor of the defendant.” See also Justice

Scalia’s detailed discussion of the rule of lenity as a principle of the construction of penal statutes

in United States v. Santos, 128 S. Ct. 2020, 2025-30 (2008) (“Under a long line of our decisions, the

tie must go to the defendant. The rule of lenity requires ambiguous criminal laws to be interpreted

in favor of the defendants subjected to them.”); United States v. Rodriquez, 128 S. Ct. 1783, 1800

(2008) (Souter, J., dissenting), for Justice Souter’s extensive discussion applying the rule of lenity

to the severity of criminal sentencing under the sentencing guidelines; Reed Dickerson, The

Interpretation and Application of Statutes 208-12 (1975); L. Hall, Strict or Liberal Construction of

Penal Statutes, 48 Harv. L. Rev. 748 ((1935).

My colleagues’ opinion is a purely formalistic, legalistic document. It advances no

sentencing purpose, calls on no principle or policy of sentencing, never mentions rehabilitation,

deterrence, “no greater punishment than necessary” (a version of the rule of lenity), or any other

guidepost set out by Congress in 18 U.S.C. § 3553. For two minor and remote marijuana

convictions Pruitt may receive the “career criminal” designation and a disproportionate sentence

comparable to the sentence he would receive if his two prior convictions were instead for rape or

robbery. The defendant here is not an abstraction or a legalistic category. He is a real-life person

addicted to drugs, guilty of growing marijuana plants at his house – where he also had three firearms

like the “Arms” the Supreme Court recently held “the people have the right to keep and bear” under

No. 06-6002 United States v. Pruitt Page 14

the Second Amendment. For this terrible crime, and his other two prior minor offenses, we are

sending the case back for another sentencing hearing for the district court to make an unknowable

calculation based on facts outside the record of this or any record we can judicially notice. Even if

such a calculation could be made, the Supreme Court has told us we may not go so far afield.