United States v. Taylor

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 08a0725n.06

Filed: November 24, 2008

Nos. 07-1886, 07-1888

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

United States of America, )

)

Plaintiff-Appellee/ ) ON APPEAL FROM THE

Cross-Appellant, ) UNITED STATES DISTRICT

) COURT FOR THE WESTERN

v. ) DISTRICT OF MICHIGAN

)

Marious Delano Taylor, )

)

Defendant-Appellant/ )

Cross-Appellee )

BEFORE: MOORE and COLE, Circuit Judges, and GRAHAM, District

Judge.*

GRAHAM, District Judge. This is an appeal brought from a

judgment of conviction and sentence entered in the United States

District Court for the Western District of Michigan. Defendant-

Appellant/Cross-Appellee Marious Delano Taylor (“the defendant”)

was convicted of one count of possession of a firearm by a

convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). He appeals the ruling of the district court denying his

motion to suppress evidence obtained from his residence pursuant to

a search warrant. The government filed a cross-appeal challenging

the district court’s decision that the defendant did not meet the

criteria for an enhanced sentence under the Armed Career Criminal

Act (“ACCA”), 18 U.S.C. § 924(e). For the following reasons, the

district court’s denial of the motion to suppress is AFFIRMED, the

*

The Honorable James L. Graham, United States District Judge for the

Southern District of Ohio, sitting by designation.

district court’s ruling that the defendant did not qualify for an

enhanced sentence under the ACCA is REVERSED, and the case is

remanded for re-sentencing.

I. History of the Case

On August 31, 2006, officers of the Grand Rapids Police

Department obtained a search warrant issued by a state court judge

to search the defendant’s residence at 524 Coit Avenue N.E., Grand

Rapids, Michigan. In the affidavit submitted in support of the

warrant application, Officer Maureen O’Brien of the Grand Rapids

Police Department, as the affiant, provided information obtained

from a confidential informant concerning the sale of cocaine at

that address. During the execution of the warrant, officers found

approximately 11 grams of crack cocaine, a digital scale, $400 in

a sock, and a loaded .32 caliber handgun.

On December 5, 2006, an indictment was returned charging

defendant with one count of possession of a firearm by a convicted

felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Defendant was arraigned on December 15, 2006, and entered a not

guilty plea. Defendant was re-arraigned on the charge when it

became apparent that he had three prior felony convictions which

might qualify him for career offender penalties.

On January 26, 2007, defendant filed a motion to suppress

evidence seized pursuant to the search warrant, alleging that the

search warrant affidavit was insufficient to show probable cause.

Defendant also asserted that the affidavit contained false

statements warranting an evidentiary hearing under Franks v.

Delaware, 438 U.S. 154 (1978). In an opinion and order filed on

February 22, 2007, the district court denied the motion to suppress

2

and denied defendant’s request for a Franks hearing. Defendant

then entered into a plea agreement with the government, retaining

his right to appeal the ruling on the motion to suppress. On March

1, 2007, defendant entered a plea of guilty to the indictment.

In paragraph 44 of the presentence investigation report, the

probation officer determined that defendant was an armed career

criminal subject to an enhanced sentence under the United States

Sentencing Guidelines (“U.S.S.G.”) § 4B1.4(b)(3)(A), based on his

previous convictions for two violent felony offenses, specifically:

(1) a 1995 conviction for assault with intent to commit a felony

(defendant was seventeen years old at the time of the offense, but

was prosecuted as an adult); and (2) a 2002 conviction for

felonious assault; and a previous conviction for a serious drug

offense, specifically: a 2002 conviction for the attempted delivery

of less than 50 grams of cocaine with a second offense notice.

This determination resulted in a guideline sentencing range of 188

to 235 months.

In a sentencing memorandum filed on June 21, 2007, defendant

objected to his designation as a career offender. He argued that

the 2002 attempted delivery offense was not a “serious drug

offense” as defined in 18 U.S.C. § 924(e)(2)(A)(ii) because that

definition does not specifically include attempt offenses. He also

argued that the 2002 attempt offense did not qualify because that

offense carried a maximum of ten years only by reason of the second

offense enhancement provision. He further contended that the 2002

attempt conviction and the 2002 felonious assault conviction could

not be counted as separate offenses because they were consolidated

for purposes of sentencing. Finally, he argued that the 1995

3

assault conviction should not be counted because, if the charge had

been resolved in a juvenile delinquency proceeding, as permitted

under Michigan law, rather than in the adult prosecution which

actually occurred, the conviction would not qualify under the ACCA

because no dangerous weapon was involved in the offense.

At the sentencing hearing held on June 28, 2007, the district

court agreed with the defendant’s argument that attempt offenses do

not fall within the ACCA’s definition of “serious drug offense” and

concluded that the ACCA enhancement was not applicable. In light

of this ruling, the district court did not specifically address

defendant’s argument that the second offense enhancement which

raised the 2002 drug conviction to an offense with a maximum term

of imprisonment of ten years should not be considered. However,

the district court did summarily reject defendant’s arguments that

the two convictions in 2002 which were consolidated for purposes of

sentencing should be treated as a single conviction, and that his

1995 conviction for an offense committed while a juvenile should

not be counted.

As a result of the court’s ruling that the ACCA did not apply,

the defendant’s sentencing range under the advisory guidelines was

determined to be 110 to 120 months, based on a total offense level

25 and a criminal history category VI. Defendant was sentenced to

a term of incarceration of 120 months, to be served concurrently

with a state court sentence defendant was then serving, and was

further sentenced to a term of supervised release of three years

and a fine of $1,500.

II. Motion to Suppress Search

A. Validity of the Search Warrant

4

Defendant appeals the district court’s ruling denying his

motion to suppress evidence obtained during the search of his

residence. The district court’s factual findings on a motion to

suppress are reviewed for clear error and its legal determinations

are reviewed de novo. United States v. Martin, 526 F.3d 926, 936

(6th Cir. 2008). A finding of probable cause is a legal conclusion

that is also reviewed de novo. Id.

“Probable cause is described as a fair probability–not an

absolute certainty–that evidence of a crime will be found at the

location.” Id., citing Illinois v. Gates, 462 U.S. 213, 238

(1983). This court must review the totality of the circumstances

“to make a practical, commonsense,” not hyper-technical,

determination of whether probable cause is present. Gates, 462

U.S. at 238. Thus, “the duty of a reviewing court is simply to

ensure that the magistrate had a substantial basis for concluding

that probable cause existed.” Id. at 238-39.

In her affidavit of August 31, 2006, Officer O’Brien, a police

officer of thirteen years who had been assigned to the Vice Unit

for the previous eleven years, described her experience with drug

cases. JA 23-24. The affidavit further states:

In this regard your affiant met with a reliable and

credible informant 1523 who indicated from personal

knowledge that cocaine could be purchased at the above

described premises. This informant from personal

knowledge is familiar with the characteristics of

cocaine, [and] the manner in which cocaine is used and

sold in the community. When your affiant met with the

informant, the informant directed your affiant to the

above described premise[s]. The informant had been at

the above described premises within the last 48 hours and

observed a quantity of cocaine being sold there. The

cocaine as described by the informant is being sold for

various amounts of US currency.

5

The cocaine is easily concealed on or about the person.

When the informant left the premise[s], there were

additional amounts of cocaine on the premises being

offered for sale. The person(s) selling the cocaine

is/are described as: B/M, Marious Taylor, 5'9"/165, 4-25-

78.

Your affiant has known the informant one month. The

informant has made 4 controlled purchases of controlled

substances. All of these controlled purchases tested

positive for the controlled substance that was purchased.

The informant has supplied information on 5 drug

traffickers in the community said information having been

verified by your affiant through police records, personal

observations, other police officers, and other reliable

informants.

JA 24.

Defendant argued in his motion to suppress that the

information provided by the informant was not corroborated, and

therefore the reliability of the informant was not established.

The district court rejected defendant’s arguments, holding that the

issuing judge had the information necessary to consider the

confidential informant’s veracity, reliability and basis of

knowledge.

The totality of the circumstances approach requires an

assessment of the adequacy of all the circumstances set forth in

the affidavit, including the veracity and basis of knowledge of a

confidential informant. Gates, 462 U.S. at 238. The affidavit

“need not reflect the direct personal observations of a law

enforcement official and may be based on a confidential informant’s

hearsay, so long as the issuing judicial officer is reasonably

assured that the informant was credible and the information

reliable.” United States v. Williams, 224 F.3d 530, 532 (6th Cir.

2000)(citing United States v. Ventresca, 380 U.S. 102, 108 (1965)).

6

Corroboration of an informant’s tip through the officer’s

independent investigative work can be a critical factor in some

cases in determining whether an affidavit based on a confidential

informant’s tip provides a substantial basis for finding probable

cause, such as where the affidavit is merely a boilerplate form.

See United States v. Weaver, 99 F.3d 1372, 1377 (6th Cir. 1996).

However, “an affidavit is not insufficient merely because ... every

statement is not corroborated.” Martin, 526 F.3d at 936-37 (noting

that Weaver “was never intended to set a stricter standard than

that established in Gates”); see also United States v. McCraven,

401 F.3d 693, 698 (6th Cir. 2005)(independent corroboration of an

informant’s story is not necessary to a determination of probable

cause). The information substantiating an informant’s reliability

need not be obtained from a source unrelated to the confidential

informant, such as an independent police investigation or a second

confidential informant, “but may be any set of facts that support

the accuracy of the information supplied by the informant.” United

States v. May, 399 F.3d 817, 824 (6th Cir. 2005); see also McCraven,

401 F.3d at 697 (“[W]hile an affidavit must state facts supporting

an independent judicial determination that the informant is

reliable, those facts need not take any particular form.”).

Sixth Circuit precedent “clearly establishes that the affiant

need only specify that the confidential informant has given

accurate information in the past to qualify as reliable.” United

States v. Greene, 250 F.3d 471, 480 (6th Cir. 2001); see United

States v. Allen, 211 F.3d 970, 976 (6th Cir. 2000)(en banc)(noting

that affiant could attest “with some detail” that the informant

provided reliable information in the past); United States v. Smith,

7

182 F.3d 473, 483 (6th Cir. 1999)(“[I]f the prior track record of

an informant adequately substantiates his credibility, other

indicia of reliability are not necessarily required.”).

Here, the affidavit stated that Officer O’Brien had known the

informant for one month. Although the informant was not named in

the affidavit, this was not required to establish the informant’s

reliability. The informant was not an anonymous source whose

statements required independent corroboration, but rather was a

person known to the affiant officer. See May, 399 F.3d at 825 (“A

person known to the affiant officer, even though not named in the

affidavit, is not ‘an anonymous informant’ in the sense referred to

in cases where the identity of the informant is known to no one.”).

Since the informant’s identity was known to Officer O’Brien and the

informant would be subject to prosecution for making a false

report, the informant’s statements “are thus entitled to far

greater weight than those of an anonymous source.” Id. at 824-25.

Officer O’Brien further stated in the affidavit that the

informant had made four controlled purchases of controlled

substances, all of which tested positive for the controlled

substance purchased. Officer O’Brien also stated that the

informant had supplied information on five drug traffickers in the

community, “said information having been verified by your affiant

through police records, personal observations, other police

officers, and other reliable informants.” JA 24. These statements

are sufficient to establish the reliability of the informant. See

Martin, 526 F.3d at 937 (statement in affidavit that confidential

informant was a known person who previously provided information

that resulted in seizure of illegal controlled substances was

8

sufficient to establish the informant’s reliability); May, 399 F.3d

at 826 (noting that affidavit which stated only that the

“cooperating source has provided assistance in unrelated drug

investigation cases” was sufficient); Greene, 250 F.3d at 480

(holding that “the affiant need only specify that the confidential

informant has given accurate information in the past to qualify as

reliable”).

In addition, the fact that the police had utilized the

informant in four controlled purchases further indicates the

credibility and reliability of the informant, since the police

would not have continued to utilize the informant if the informant

was not credible and reliable. See United States v. Fowler, 535

F.3d 408, 414 (6th Cir. 2008). The fact that Officer O’Brien was

able to verify the informant’s information concerning five other

drug traffickers by other means provides a further basis for the

reliability of the informant’s information. See id. There is

sufficient information in the affidavit to permit the issuing judge

to determine the reliability and credibility of the informant.

Defendant also argues that the affidavit is insufficient to

establish that drugs would be found in the residence. In his

motion to suppress, defendant noted that there was no indication

how the informant came to be at defendant’s residence, no

information as to the form of cocaine that was being sold, the

amount sold, or the purchase price, and no indication that the

informant had purchased cocaine at the residence. However, “[t]he

affidavit is judged on the adequacy of what it does contain, not on

what it lacks, or on what a critic might say should have been

added.” Allen, 211 F.3d at 975. An affidavit “is not insufficient

9

merely because it lacks explicitness of detail[.]” Martin, 526

F.3d at 937.

In this case, the affidavit states that the informant stated

from personal knowledge that cocaine could be purchased at the

residence. The affidavit indicated that the informant, based on

personal knowledge, was familiar with the characteristics of

cocaine and the manner in which it is used and sold in the

community. The informant’s familiarity with cocaine is

corroborated by the information that the informant had made four

controlled purchases of controlled substances which had tested

positive for the controlled substance purchased.

The affidavit revealed that the informant had been in the

residence within the past forty-eight hours and had observed

cocaine being sold there for various monetary amounts. As this

court stated in United States v. Pelham, 801 F.2d 875 (6th Cir.

1986), “there could hardly be more substantial evidence of the

existence of the material sought and its relevance to a crime than

[the informant’s] direct viewing of” cocaine in defendant’s house.

Id. at 878; see also Gates, 462 U.S. at 234 (stating that an

informant’s “explicit and detailed description of alleged

wrongdoing, along with a statement that the event was observed

first-hand, entitled his tip to greater weight”). The informant

also stated that there were still additional amounts of cocaine

remaining at the residence when the informant left the premises,

thus supporting the probability that cocaine would be found during

the requested search. The facts related in the affidavit are

sufficient to establish probable cause to search the residence.

B. Denial of a Franks Hearing

10

Defendant also argues that the district court should have

granted his motion for a Franks hearing. In considering the

district court’s denial of a Franks hearing, the district court’s

factual findings are reviewed for clear error and its conclusions

of law are reviewed de novo. United States v. Graham, 275 F.3d

490, 505 (6th Cir. 2001). A defendant is entitled to a hearing to

challenge the validity of a search warrant if he “makes a

substantial preliminary showing that a false statement knowingly

and intentionally, or with reckless disregard for the truth, was

included by the affiant in the warrant affidavit, and ... the

allegedly false statement is necessary to the finding of probable

cause.” Franks, 438 U.S. at 155-156; United States v. Atkin, 107

F.3d 1213, 1216-17 (6th Cir. 1997). If, when the statements which

were allegedly made falsely or with reckless disregard for the

truth are set to one side, “there remains sufficient content in the

warrant affidavit to support a finding of probable cause, no

hearing is required.” Franks, 438 U.S. at 171-172. The remainder

of the affidavit establishes probable cause if it “provide[s] the

magistrate judge with a basis for finding there was a fair

probability that contraband or evidence of a crime would be found

at” the stated location. Graham, 275 F.3d at 504.

Defendant submitted an affidavit with his motion to suppress,

stating that he was not present at the residence for three days

prior to the signing of the search warrant affidavit and had not

sold drugs from the premises during that time period, and that his

weight was 220 pounds, not 165 pounds. He summarily alleged that

the informant’s statements about observing cocaine sales at the

residence during the 48 hours preceding the warrant application and

11

the fact that additional quantities of cocaine were present when

the informant left the residence were false. The district court

concluded that even assuming that defendant’s statement about not

being present at the residence was true, that did not necessarily

render untrue the statement about defendant being described as the

person selling cocaine. The district court further noted that even

assuming that the informant’s statements were untrue, defendant

made no showing that Officer O’Brien knew or should have known that

the statements were false. The district court denied defendant’s

motion for a Franks hearing.

Even if it is assumed that the defendant was not at the

residence during the relevant time period, the information provided

by the informant is not necessarily false. The affidavit states

that the informant “observed a quantity of cocaine being sold

there.” JA 24. The affidavit stated that “The person(s) selling

the cocaine is/are described as: ... Marious Taylor.” Id. It does

not state that defendant was personally selling the cocaine while

the informant was at the residence, and, by referring to

“person(s)” in the plural, the statement is broad enough to support

an inference that the informant may have observed another person

selling cocaine as defendant’s agent on that occasion. Even if the

informant mistakenly or deliberately misidentified the person

selling cocaine at the residence as being the defendant and the

reference to the defendant is deleted, the information about the

informant seeing cocaine being sold at the residence remains

intact.

In addition, the district court correctly observed that the

defendant offered no explanation as to why Officer O’Brien knew or

12

should have known that the statement was false. “Warrant

affidavits carry with them ‘a presumption of validity,’ and ‘the

challenger’s attack must be more than conclusory’ and must allege

‘deliberate falsity or reckless disregard [on the part] of the

affiant, not of any nongovernmental informant.’” United States v.

Stuart, 507 F.3d 391, 398 (6th Cir. 2007)(quoting Franks, 438 U.S.

at 171 (emphasis added)). Since defendant proffered no evidence

that Officer O’Brien knew or should have known that the information

identifying defendant as a seller of cocaine at the residence was

false (assuming that it was), he was not entitled to a Franks

hearing on that issue.

C. Leon Good-Faith Exception

The government argues that even assuming that the search

warrant affidavit was deficient, the search should be upheld under

the good-faith exception to the warrant requirement announced in

United States v. Leon, 468 U.S. 897 (1984). In Leon, the Supreme

Court held that the exclusionary rule should not bar “admission of

evidence seized in reasonable, good-faith reliance on a search

warrant that is subsequently held to be defective.” Leon, 468 U.S.

at 905. The relevant question is “whether a reasonably well

trained officer would have known that the search was illegal

despite the magistrate’s authorization.” Id. at 922 n. 23.

Leon identified four situations in which an officer’s reliance

on a subsequently invalidated warrant could not be considered to be

objectively reasonable: (1) when the search warrant is issued on

the basis of an affidavit that the affiant knows, or is reckless in

not knowing, contains false information; (2) when the issuing

magistrate abandons his neutral and detached role and serves as a

13

rubber stamp for police activities; (3) when the affidavit is so

lacking in indicia of probable cause that a belief in its existence

is objectively unreasonable, or where the warrant application was

supported by nothing more than a “bare bones” affidavit; and (4)

when the warrant is so facially deficient that it cannot reasonably

be presumed to be valid. See United States v. Washington, 380 F.3d

236, 241 (6th Cir. 2004). The first two exceptions are not at issue

in this case.

The standard for determining whether an affidavit is “so

lacking in indicia of probable cause” as to render a belief in its

existence unreasonable is a less demanding showing than the

“substantial basis” threshold required to prove the existence of

probable cause in the first place. United States v. Carpenter, 360

F.3d 591, 595 (6th Cir. 2004)(en banc). “Thus, it is entirely

possible that an affidavit could be insufficient for probable cause

but sufficient for ‘good-faith’ reliance.” Washington, 380 F.3d at

241. A “bare bones” affidavit “states suspicions, or conclusions,

without providing some underlying factual circumstances regarding

veracity, reliability, and basis of knowledge.” United States v.

Van Shutters, 163 F.3d 331, 337 (6th Cir. 1998)(quoting Weaver, 99

F.3d at 1378).

The affidavit in the instant case was not a “bare bones”

affidavit. The affidavit did more than simply state suspicions, or

conclusions; it provided some underlying factual circumstances

regarding veracity, reliability, and basis of knowledge. The

affidavit included information that an informant who had personal

knowledge about the characteristics of cocaine and the manner in

which it is used and sold, and who had participated in controlled

14

purchases of controlled substances which tested positive for the

substances purchased, had personally observed cocaine being sold at

the defendant’s residence within the forty-eight hours preceding

the issuance of the warrant. The affiant also stated that there

was additional cocaine being offered for sale at the residence when

the informant departed. The facts established a nexus between the

illegal activity and the premises to be searched, and “were not so

vague as to be conclusory or meaningless.” Carpenter, 360 F.3d at

596. Since the informant had provided reliable information to the

police in the past concerning five other drug traffickers, Officer

O’Brien was justified in believing that the informant’s information

in this case was credible and reliable. The Leon good-faith

exception applies in this case.

We hold that the district court did not err in denying

defendant’s motion to suppress evidence.

III. Applicability of the Armed Career Criminal Act

A. 2002 Drug Conviction as a Qualifying Offense

The government appeals the district court’s ruling that

defendant’s previous conviction for attempted delivery of less than

50 grams of cocaine did not qualify as a “serious drug offense”

under 18 U.S.C. § 924(e)(2)(A)(ii) for purposes of imposing the

enhanced penalty under the ACCA. In the case of a defendant who is

convicted of an offense under 18 U.S.C. § 922(g), the ACCA requires

the imposition of an enhanced penalty of not less than fifteen

years incarceration where the defendant has three previous

qualifying convictions “for a violent felony or a serious drug

offense, or both, committed on occasions different from one

another[.]” 18 U.S.C. § 924(e)(1).

15

The term “serious drug offense” is defined in part as:

an offense under State law, involving manufacturing,

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).

The district court agreed with the defendant’s argument that

attempt offenses in general do not fall within the ACCA’s

definition of “serious drug offense.” JA 165-67. However, it is

unnecessary to reach that issue here, because the record reveals

that defendant’s prior conviction was for an offense “involving ...

distributing ... a controlled substance.”

This court reviews de novo the district court’s decision

regarding the applicability of the ACCA. United States v. Amos,

501 F.3d 524, 526 (6th Cir. 2007). The government bears the burden

of establishing that defendant’s prior convictions qualify as ACCA

predicates. See United States v. Goodman, 519 F.3d 310, 316 (6th

Cir. 2008).

In determining whether the defendant’s prior conviction

qualifies as a predicate offense under the ACCA, “we use a

categorical approach, looking ‘only to the statutory definitions of

the prior offenses, and not to the particular facts underlying

those convictions’ to determine whether a sentence should be

enhanced.” United States v. Flores, 477 F.3d 431, 434 (6th Cir.

2007)(quoting Taylor v. United States, 495 U.S. 575, 600 (1990)).

However, in cases where the statutory definition is ambiguous and

the categorical approach is not determinative, this court may also

refer to “the terms of the charging document, the terms of a plea

16

agreement or transcript of colloquy between judge and defendant in

which the factual basis for the plea was confirmed by the

defendant, or to some comparable judicial record of this

information.” Shepard v. United States, 544 U.S. 13, 26 (2005);

see also Goodman, 519 F.3d at 317; United States v. Armstead, 467

F.3d 943, 947 (6th Cir. 2006).

Defendant was originally charged by information filed on May

30, 2002, in the Circuit Court of Ottawa County, Michigan, with the

offense of delivery of less than 50 grams of cocaine in violation

of Mich. Comp. Laws § 333.7401(2)(a)(iv), an offense punishable by

imprisonment of up to 20 years. Defendant was also charged with a

second offense notice under Mich. Comp. Laws § 333.7413(2), which

had the effect of doubling the potential term of incarceration

otherwise applicable to the underlying offense to a maximum term of

40 years.

Defendant was later charged by information filed on August 5,

2002, with Count 2, the offense of attempt to deliver less than 50

grams of cocaine in violation of Mich. Comp. Laws §

333.7401(2)(a)(iv) and Mich. Comp. Laws § 750.92, the general

attempt statute. The potential term of incarceration under the

general attempt statute is a period of up to five years, doubled to

ten years in defendant’s case by the second offense notice.

At the plea proceedings on August 5, 2002, the prosecutor

indicated that Count 1 in the original information would be

dismissed, and that defendant would be pleading guilty to Count 2

and the second offense notice. The prosecutor further stated that

this offense “is a five-year felony” and that the second-offense

notice would result in a double penalty. JA 111-12. Defendant was

17

sentenced to a term of imprisonment of 23 to 120 months. The

judgment referred to § 333.7401(2)(a)(iv) and § 333.7413(2).

However, it did not refer to § 750.92. Thus, there is some

ambiguity in the record as to the exact statutory basis of

defendant’s conviction.

Considering first the relevant drug provisions, Michigan law

provides that “a person shall not ... deliver ... a controlled

substance[.]” Mich. Comp. Laws § 333.7401(1). Section

333.7401(2)(a)(iv) establishes the penalty for a violation of §

333.7401(1) where the offense involved a Schedule 1 or 2 controlled

substance in an amount less than fifty grams, which includes a term

of incarceration of up to twenty years. As used in § 333.7401(1),

the term “deliver” or “delivery” means “the actual, constructive,

or attempted transfer from 1 person to another of a controlled

substance[.]”1 Mich. Comp. Laws § 333.7105(1). Since the

definition of “deliver” includes “attempted transfer,” Michigan

courts have held that under § 333.7401, there is no such offense as

“attempted delivery” of a controlled substance; any attempt is

subsumed under the crime of delivery itself. See People v. Marji,

447 N.W.2d 835, 838 (Mich.Ct.App. 1989); Wayne County Prosecutor v.

Detroit Recorder’s Court Judge, 442 N.W.2d 771, 773 (Mich.Ct.App.

1989); People v. Wright, 253 N.W.2d 739, 740-41 (Mich.Ct.App.

1977). Thus, if § 333.7401 is considered to be the statutory

provision underlying defendant’s attempt conviction, then that

1

This definition is similar to definitions found in the

federal drug laws. “The term ‘distribute’ means to deliver ... a

controlled substance[.]” 21 U.S.C. § 802(11). “The terms

‘deliver’ or ‘delivery’ mean the actual, constructive, or attempted

transfer of a controlled substance[.]” 21 U.S.C. §802(8).

18

conviction would qualify as a delivery offense by definition under

Michigan law, and would also constitute an offense “involving ...

distributing ... a controlled substance” under the ACCA.

However, the charging document also refers to § 750.92.2 This

statute creates a distinct substantive offense. People v.

Thousand, 631 N.W.2d 694, 702 (2001). The elements of the general

attempt offense under § 750.92 are: (1) an attempt to commit an

offense prohibited by law, and (2) any act towards the commission

of the intended offense. Id. at 701.

Assuming arguendo that defendant’s conviction was for an

offense under § 750.92, that general provision is arguably broad

enough to encompass “some offenses that meet the ACCA’s definition

of” a “serious drug offense” and “some that do not[.]” See United

States v. Hargrove, 416 F.3d 486, 494 (6th Cir. 2005). In such

circumstances, we may consider the “transcript of plea colloquy,

and any explicit factual finding by the trial judge to which the

defendant assented.” Shepard, 544 U.S. at 16.

The record in this case, JA at 125-126, contains a transcript

2

Section 750.92 applies only “when no express provision is

made by law for the punishment of such attempt.” § 750.92; Wayne

County Prosecutor, 442 N.W.2d at 772. Because § 333.7401(2)(a)(iv)

specifically provides a different punishment for an attempted

delivery of a controlled substance, the general attempt statute is

technically inapplicable to an offense under that section. See

Wright, 253 N.W.2d at 741 (rejecting § 750.92 as a basis for

instructing the jury on attempted delivery of heroin as a lesser

included offense); see also Mich. Comp. Laws § 333.7407a (an

attempt to violate the drug laws is punishable by the penalty for

the crime which the defendant attempted to commit). It is possible

that the prosecution offered a plea agreement under the general

attempt statute, even if erroneously, because defendant was only

willing to plead guilty to an offense which entailed a lower

penalty than the original charge.

19

of the plea proceedings which includes the following exchange:

THE COURT: Tell me the facts that make you guilty.

THE DEFENDANT: Well, this lady came to the house and–

THE COURT: Did you sell her some cocaine?

THE DEFENDANT; Yes, I did.

THE COURT: And whose house was it?

THE DEFENDANT: It wasn’t at a residence. It’s like she

came to the house, and my girlfriend’s mother was at the

house, so I told her to meet me down the street. And

it–so it was on 16th Street, at some little store, where

you buy beer and stuff.

THE COURT: Did this delivery of cocaine to this other

person take place in the City of Holland on or about June

14 of 1999?

THE DEFENDANT: Yeah. I’m not sure exactly.3

* * *

THE COURT: Mr. Taylor, the Court determines your plea is

voluntarily made, that the crime was committed, that you

did commit the crime, [and] therefore, accepts your plea

of guilty.

In this exchange, defendant admitted to actually delivering

cocaine. The plea colloquy establishes that the offense of

conviction was an offense “involving ... distributing ... a

controlled substance” under the ACCA.

Defendant also argued before the district court, and now

argues on appeal, that his 2002 drug conviction was not a “serious

drug offence” because it was not an offense “for which a maximum

3

Presumably the defendant’s uncertainty related to the date

or location of the transaction; he did not object in any way to the

court’s characterization of the transaction as a delivery.

20

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

18 U.S.C. § 924(e)(2)(A)(ii). As previously stated, defendant

entered a guilty plea to Count 2, which charged him with a

violation of § 333.7401(2)(a)(iv) and § 750.92, the general attempt

statute, under which the maximum penalty was five years

incarceration. However, the defendant also pleaded guilty to the

second offense notice, which rendered him subject to an enhanced

penalty of ten years pursuant to § 333.7413(2). He was sentenced

on September 3, 2002, to a term of imprisonment of 23 to 120

months.

Defendant argues that the enhancement provision, which

elevated his maximum sentence from five years to ten years due to

a prior conviction, should not be considered for purposes of

meeting the ten-year threshold under the ACCA. This argument is

foreclosed by the recent decision of the Supreme Court in United

States v. Rodriquez, 128 S.Ct. 1783 (2008). In Rodriquez, the

Supreme Court held that the “maximum term of imprisonment of ten

years or more ... prescribed by law” referred to in §

924(e)(2)(A)(ii) included any recidivist enhancements provided for

under state law. Id. at 1787-93. The Court noted that “an offense

committed by a repeat offender is often thought to reflect greater

culpability and thus to merit greater punishment” and “portends

greater future danger and therefore warrants an increased sentence

for purposes of deterrence and incapacitation.” Id. at 1789. The

Court rejected the argument that offenses that are not really

serious will be included as “serious drug offenses,” noting that

since Congress presumably thought that if state lawmakers provide

for a crime punishable by ten years’ imprisonment, “the lawmakers

21

must regard the crime as ‘serious,’ and Congress chose to defer to

the state lawmakers’ judgment.” Id. at 1790. The Court held that

the “maximum term of imprisonment ... prescribed by law” for the

state drug convictions “was the 10-year maximum set by the

applicable recidivist provision.” Id. at 1793.

Defendant’s previous conviction for an offense involving

distributing a controlled substance, enhanced by his prior

conviction to a maximum term of incarceration of ten years,

satisfies the definition of “serious drug offense” under the ACCA.4

The district court erred in holding that defendant’s prior drug

conviction did not qualify as a “serious drug offense” and this

case must be remanded for re-sentencing. The defendant raised

other objections before the trial court concerning his status under

the ACCA which would presumably be repeated upon re-sentencing.

These objections have been briefed by the parties on appeal, and in

the interest of judicial economy, we will address these issues as

well.

B. Prior Convictions on Different Occasions

In order to constitute “three previous convictions,” the

offenses must be “committed on occasions different from one

another[.]” 18 U.S.C. § 924(e)(1). Defendant argues that the 2002

drug conviction and the 2002 felonious assault conviction cannot be

counted as two separate convictions because they were consolidated

4

The government also argues that defendant should have been

charged under the more specific attempt provision applicable to

drug offenses found in Mich. Comp. Laws § 333.7407a, which provides

that an attempt is punishable by the penalty for the crime which

the defendant attempted to commit. However, since the enhanced

penalty which the defendant actually received as a recidivist

satisfies the ACCA, it is not necessary to address this argument.

22

for purposes of sentencing. The information in the drug case

charges that defendant committed the offense on or about June 14,

1999. The transcript of the plea proceeding reveals that the

felonious assault charge stemmed from defendant assaulting two

victims with a knife on November 12, 2001. Offenses are considered

distinct criminal episodes if they “occurred on occasions different

from one another.” Martin, 526 F.3d at 939 (quoting United States

v. Roach, 958 F.2d 679, 684 (6th Cir. 1992)). Here, the offenses

occurred on different occasions.

The fact that these two offenses were consolidated for

sentencing purposes does not undermine their status as separate

convictions under the ACCA. As this court has noted, § 924(e)(1)

“imposes no conditions as to the timing of the convictions.”

United States v. Hayes, 951 F.2d 707, 709 (6th Cir. 1991)(when it

is clear that the defendant’s prior convictions involved separate

criminal episodes, § 924(e)(1) does not require the convictions to

have been adjudicated separately). “The relevant factor for

determining the number of predicate offenses under the ACCA is not

the date of conviction for those predicate offenses, but the date

that the defendant committed the offense for which he is

subsequently convicted.” Roach, 958 F.2d at 683. The fact that

the offenses were consolidated for sentencing or for concurrent

sentences is immaterial for ACCA enhancement purposes, so long as

the separate offenses occurred at different times and/or places.

Martin, 526 F.3d at 939 (citing United States v. Warren, 973 F.2d

1304, 1310 (6th Cir. 1992)).

Defendant argues that the standard in the Sentencing

Guidelines for computing a defendant’s criminal history category

23

should also be applied in determining whether there are three

separate convictions under the ACCA. Under recently amended

U.S.S.G. § 4A1.2(a)(2)(2007), sentences are classified as separate

if they were imposed for crimes that were separated by an

intervening arrest. This argument was recently rejected in United

States v. Bailey, 264 Fed. App’x 480, 483-84 (6th Cir. Feb. 14,

2008)(declining to apply the methods for calculating criminal

history under the Guidelines in determining whether offenses are

distinct under the ACCA, and noting that the Sentencing Commission

cannot alter a statute such as the ACCA by changing the

Guidelines). See also James v. United States, 217 Fed. App’x 431,

440-41 (6th Cir. Feb. 12, 2007)(rejecting argument that lack of

intervening arrest mandated finding that offenses were not

committed on different occasions); United States v. Brady, 988 F.2d

664, 666 (6th Cir. 1993)(en banc)(finding that offenses were

committed on different occasions even though defendant was not

arrested between the two offenses); Warren, 973 F.2d at 1310

(consolidation of offenses for sentencing immaterial under the

ACCA, even though such consolidation could be relevant under the

Sentencing Guidelines).

The district court did not err in rejecting defendant’s

argument that the 2002 convictions were not for separate offenses.

D. 1995 Assault Conviction

Defendant argues that his 1995 assault conviction does not

constitute a “violent felony” under the ACCA. The term “violent

felony” means “any crime punishable by imprisonment for a term

exceeding one year, or any act of juvenile delinquency involving

the use or carrying of a firearm, knife, or destructive device that

24

would be punishable by imprisonment for such term if committed by

an adult,” where the offense “has as an element the use, attempted

use, or threatened use of physical force against the person of

another[.]” 18 U.S.C. § 924(e)(2)(B)(i).

Defendant does not dispute that he was charged as an adult

with unarmed assault with intent to rob in violation of Mich. Comp.

Laws § 750.87, a felony with a maximum term of imprisonment of ten

years, nor does he dispute that he was sentenced as an adult to

eight months incarceration. Rather, defendant argues that since

his charge could have been resolved as a juvenile proceeding under

Mich. Comp. Laws § 712A.2d,5 his conviction was akin to a juvenile

delinquency determination, which would require the use of a weapon

to qualify as an ACCA predicate offense.

Regardless of whether defendant could have been prosecuted as

a juvenile, he was in fact tried, convicted, and sentenced as an

adult. The definition of “violent felony” is in the disjunctive,

requiring either that the crime be punishable by imprisonment for

a term exceeding one year, or that it be a juvenile delinquency

charge involving the use of a firearm, knife or destructive device.

Since defendant was convicted and sentenced as an adult for a crime

punishable by imprisonment for a term exceeding one year, this

conviction qualifies as a conviction for purposes of the ACCA

enhancement. See United States v. Spears, 443 F.3d 1358, 1360-61

5

Mich. Comp. Laws § 712A.2d(7) provides that where the

juvenile defendant is tried as an adult, the “conviction shall have

the same effect and liabilities as if it had been obtained in a

court of general criminal jurisdiction.” Following a judgment of

conviction, the judge may impose a juvenile disposition, an adult

sentence, or a blended sentence. Mich. Comp. Laws §§ 712A.2d(8)

and 712A.18(1)(n).

25

(11th Cir. 2006)(rejecting defendant’s argument that proof of use

of one of the specified weapons was required because he was

seventeen years old when he committed the offense, where defendant

was tried and convicted as an adult); United States v. Lender 985

F.2d 151, 156 (4th Cir. 1993)(“[I]f the state prosecutes an

individual as an adult, as it did here, the first part of the

‘violent felony’ definition applies; if the state prosecutes as a

juvenile, then the second part applies.”). As the court in Lender

noted, Congress has chosen to incorporate state law, “letting

states decide at what point adult treatment for a particular

offense is indicated[,]” and “the prosecuting jurisdiction’s

determination of whether an individual is prosecuted as a juvenile

or an adult must be respected by later sentencing courts.” 985

F.2d at 156-57.

Because the State of Michigan determined that defendant should

be tried and sentenced as an adult for an offense punishable by

imprisonment for a term exceeding one year, defendant’s 1995

conviction satisfies the definition of “violent felony” even though

defendant could have been tried as a juvenile.

IV. Conclusion

In accordance with the foregoing, the district court’s ruling

on the motion to suppress evidence is AFFIRMED. Since the record

establishes that defendant, at the time of sentencing, had three

previous convictions which qualified as predicate offenses under

the ACCA, the district court erred in refusing to sentence

defendant as an armed career criminal. The sentence previously

imposed is VACATED, and the case is REMANDED for re-sentencing in

accordance with the ACCA.

26