United States v. Shabazz

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

12-4-2000

United States v. Shabazz

Precedential or Non-Precedential:

Docket 99-5807

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Filed December 4, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-5807

UNITED STATES OF AMERICA

v.

ABDUL AZIZ SHABAZZ,

a/k/a LEWIS ALVIN HAYES,

a/k/a ALVIN HAYES,

a/k/a ISIAH SIMMONS

Abdul Aziz Shabazz,

Appellant

Appeal from the United States District Court

for the District of New Jersey

(D.C. Criminal Action No. 97-cr-00339-2)

District Judge: Honorable Joseph A. Greenaway, Jr.

Submitted Under Third Circuit LAR 34.1(a)

August 11, 2000

Before: BARRY, AMBRO, and GREENBERG, Circuit Judges

(Opinion filed: December 4, 2000)

PAUL W. BERGRIN, ESQUIRE

Pope, Bergrin & Verdesco, P .A.

572 Market Street

Newark, New Jersey 07105

Counsel for Appellant

ROBERT S. CLEARY, ESQUIRE

United States Attorney,

District of New Jersey

GEORGE S. LEONE, ESQUIRE

Chief, Appeals Division

MICHAEL MARTINEZ, ESQUIRE

Assistant United States Attorney

970 Broad Street

Room 700

Newark, New Jersey 07102

Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge.

Section 4B1.1 of the United States Sentencing Guidelines

("U.S.S.G." or "Guidelines") provides for increased or

enhanced sentences for career offenders. 1 Conviction of

certain prior crimes (e.g., "contr olled substance offenses")

triggers the application of career offender status. This

appeal by Abdul Aziz Shabazz raises the question of

whether a prior state conviction for employing a juvenile in

a drug distribution ring is properly consider ed a controlled

substance offense pursuant to U.S.S.G. S 4B1.1. We

conclude that it is and thus affirm the judgment of the

District Court.

Jurisdiction properly existed in the District Court

pursuant to 18 U.S.C. S 3231. Jurisdiction in this Court is

pursuant to 28 U.S.C. S 1291 and 18 U.S.C.S 3742(a).

_________________________________________________________________

1. All citations are to the 1998 United States Sentencing Guidelines, the

Guidelines in effect at the time of Shabazz's sentencing. U.S.S.G.

S 4B1.1 reads in part:

A defendant is a career offender if (1) the defendant was at least

eighteen years old at the time the defendant committed the instant

offense of conviction, (2) the instant of fense of conviction is a

felony

that is either a crime of violence or a contr olled substance

offense,

and (3) the defendant has at least two prior felony convictions of

either a crime of violence or a controlled substance offense.

2

Shabazz's notice of appeal was timely filed. W e exercise

plenary review over a District Court's deter mination that an

offense constituted a controlled substance offense for

purposes of determining career of fender status under

U.S.S.G. S 4B1.1. See United States v. W illiams, 176 F.3d

714, 715 (3d Cir. 1999).

I.

On November 12, 1998, Shabazz pled guilty to conspiring

to possess heroin with the intent to distribute in violation

of 21 U.S.C. SS 846, 841(a)(1), and to possessing a

counterfeit security with intent to deceive in violation of 18

U.S.C. S 513(a). In anticipation of sentencing, a probation

officer prepared a presentence r eport. He determined that

Shabazz should be classified as a career of fender pursuant

to U.S.S.G. S 4B1.1. In making that finding, the probation

officer determined that (1) Shabazz was at least 18 years

old at the time of the offense, (2) the of fense was a

controlled substance offense under the Guidelines, and (3)

he had two prior felony convictions that are classified as a

crime of violence or a controlled substance of fense. See

U.S.S.G. S 4B1.1.

The probation officer determined that Shabazz had three

predicate convictions that supported the thir d prong of

S 4B1.1. Those prior felony convictions included (1) a 1988

New Jersey conviction for possession of a contr olled

substance with intent to distribute, (2) a 1989 New Jersey

conviction for employing a juvenile in a drug distribution

scheme, and (3) a 1982 New York conviction for second

degree robbery.

At sentencing, defense counsel objected to the use of the

latter two convictions to satisfy the third pr ong of S 4B1.1.

Specifically, counsel argued that (1) the crime of

employment of a juvenile in a drug distribution scheme is

akin to a solicitation conviction and thus not a controlled

substance offense as defined in the Guidelines, and (2) the

robbery conviction was not supported by adequate proof.

3

Over these objections, the District Court classified Shabazz

as a career offender predicated on the first two listed felonies.2

As a career offender, Shabazz's adjusted offense level was

29 and his criminal history category remained unchanged

at VI. This places his potential sentence within the range of

151-188 months. However, the District Court departed

downward pursuant to U.S.S.G. S 5K1.1 3 and sentenced

Shabazz to two concurrent prison terms of 72 months.

II.

The parties do not dispute that the first two pr ongs of

S 4B1.1 have been satisfied. The sole question for decision

is whether Shabazz's state conviction for employing a minor

in the distribution of a controlled substance is properly

classified as a predicate controlled substance offense

pursuant to U.S.S.G. S 4B1.1.

The term "controlled substance of fense" means an

offense under federal or state law, punishable by

imprisonment for a term exceeding one year , that

prohibits the manufacture, import, export, distribution,

or dispensing of a controlled substance (or a

counterfeit substance) or the possession of a controlled

substance (or a counterfeit substance) with intent to

manufacture, import, export, distribute, or dispense.

U.S.S.G. S 4B1.2(b).

In order to classify a prior conviction as a controlled

substance offense, the sentencing court should begin with

the language of the statute. If the statute of conviction is

clear, the court should not look beyond that statute's text.

See United States v. Hernandez, 218 F .3d 272, 279 (3d Cir.

_________________________________________________________________

2. The District Court noted however, that"if I were required to make a

finding, I believe there's a sufficient basis for this Court to conclude

that

Mr. Shabazz . . . was convicted of second degree robbery."

3. Section 5K1.1, entitled "Substantial Assistance to Authorities,"

provides: "Upon motion of the government stating that the defendant has

provided substantial assistance in the investigation or prosecution of

another person who has committed an offense, the court may depart

from the guidelines."

4

2000). However, if the statute of conviction is unclear or

broad enough to criminalize acts that ar e not properly

classified as a controlled substance of fense, the sentencing

court may look beyond the bare elements of the statute.

See id.; Williams, 176 F.3d at 716 n.3; see also United

States v. Casarez-Bravo, 181 F.3d 1074, 1077-78 (9th Cir.

1999) (allowing a court to look past the statutory definition

of a crime and to examine judicially noticeable facts or

documents that clearly establish the conviction to be a

predicate conviction for enhancement purposes); United

States v. Coleman, 158 F.3d 199, 202 (4th Cir. 1998) ("In

those narrow circumstances in which [a defendant] could

have been [convicted] in two ways, . . . a district court must

look past the fact of conviction and the elements of the

offense to determine which type of of fense supported the

defendant's conviction."); United States v. Palmer, 68 F.3d

52, 55-56 (2d Cir. 1995) ("If . . . the statute reaches both

conduct that satisfies these definitions and conduct that

does not, then the charging instrument and jury

instructions may be consulted to determine whether the

prior conviction was imposed for conduct that qualifies for

enhancement purposes.").

Significantly, in United States v. Her nandez, 145 F.3d

1433 (11th Cir. 1998), the Eleventh Cir cuit decided an

issue similar to the one this Court is asked to decide today.

In that case, a jury found the defendant, Modesto

Hernandez, guilty of, among other things, possession of

cocaine with intent to distribute. In the pr esentencing

report, the probation officer applied the career offender

provision of U.S.S.G. S 4B1.1 as a r esult of two prior

controlled substance convictions. Hernandez challenged the

use of the convictions as outside the scope of a controlled

substance offense for S 4B1.1 purposes.

The statute that Hernandez was convicted under stated

that " `it is unlawful for any person to sell, purchase,

manufacture, deliver, or possess with the intent to sell a

controlled substance.' " See id. at 1440 (quoting Fla. Stat.

Ann. S 893.13(1)(a) (1993)). Hernandez's 1993 plea of nolo

contendere to both charges did not specify whether his

convictions were for the purchase or the sale of controlled

substances. The difference was significant because a

5

conviction for purchasing did not qualify as a controlled

substance offense for S 4B1.1 enhancement purposes, while

a conviction for sale did.

The Eleventh Circuit held that although the District

Judge improperly considered the arr est affidavits in

determining whether the convictions wer e for purchasing or

selling, a sentencing court could look beyond the words of

the statute to determine if an offense qualifies as a

predicate for S 4B1.1 enhancement purposes. On remand, it

instructed the District Court to examine "easily produced

and evaluated court documents, such as any helpful plea

agreements or plea transcripts, any presentencing reports

adopted by the sentencing judges, and any findings made

by the sentencing judges," in order to deter mine whether

the prior convictions qualified as predicate offenses for

enhancement under S 4B1.1. Id.

When considering the classification of a criminal statute

as a controlled substance offense, the sentencing court

should ascertain if the conduct that causes a conviction

under the statute was a controlled substance of fense. See

Williams, 176 F.3d at 717. Put another way, the sentencing

court should ask if a violation of the criminal statute

facilitated "the manufacture, import, export, distribution, or

dispensing of a controlled substance (or a counterfeit

substance) or the possession of a controlled substance (or

a counterfeit substance) with intent to manufacture,

import, export, distribute, or dispense." U.S.S.G. S 4B1.2(b).

For example, in Williams this Court considered whether a

conviction pursuant to 21 U.S.C. S 843(b) for" `knowingly or

intentionally' " using " `any communication facility in

committing or in causing or facilitating the commission of

any acts constituting a [drug-related] felony' " was properly

classified as a controlled substance of fense. Williams, 176

F.3d at 716 (quoting 21 U.S.C. S 843(b)). This Court ruled

that "where a particular S 843(b) conviction established that

the defendant `committ[ed],' `caus[ed],' or `facilitat[ed]' one

of the acts enumerated in U.S.S.G. S 4B1.2(2), that

conviction qualifies as a `controlled substance offense' for

purposes of determining career of fender status." Id. at 717

(alteration in original).

6

The disputed statute of conviction in this case is entitled

"Employing a Juvenile in a Drug Distribution Scheme." The

operative statutory language reads: "Any person being at

least 18 years of age who knowingly uses, solicits, directs,

hires or employs a person 17 years of age or younger to

violate N.J.S. 2C:35-4 or subsection a. of N.J.S. 2C:35-5, is

guilty of a crime of the second degree . . . ." N.J. Stat. Ann.

S 2C:35-6 (West 1995).4 The parties do not dispute that

Shabazz's conviction under S 2C:35-6 was for conduct that

facilitated the distribution of a controlled substance.

However, Shabazz urges us not to conclude our analysis

here. He contends that, although the of fense underlying

S 2C:35-6 may be a controlled substance offense, the

criminal act committed by him was solicitation and

solicitation cannot be considered a contr olled substance

offense. Shabazz points out that in United States v. Dolt, 27

F.3d 235 (11th Cir. 1994), the United States Court of

Appeals for the Eleventh Circuit noted that solicitation was

not among the preliminary and inchoate crimes listed

separately in the Application Notes to the Guidelines as

constituting a controlled substance offense. See id. at 238.

However, the Court continued to explor e the treatment of

solicitation as applied in Florida courts to deter mine

whether it was sufficiently similar to those crimes listed as

controlled substance offenses. See id. Since solicitation is

distinct and generally further removed fr om the facilitated

act, the Court reasoned that it was sufficiently dissimilar to

the preliminary and inchoate crimes listed in the

Guidelines and thus not covered. See id. at 238-40.

If we were to decide that Dolt contr olled this case, we

would be required to determine if Shabazz's conduct

constituted solicitation or one of the other enumerated

offenses in S 2C:35-6. New Jersey criminal law no longer

provides for the separate offense of solicitation. Instead,

solicitation is punishable as a criminal attempt in violation

of N.J. Stat. Ann. S 2C:5-1. See State v. Sunzar, 751 A.2d

627, 631 (N.J. Super. Ct. Law Div. 1999); State v.

_________________________________________________________________

4. The cited statutes within S 2C:35-6 r espectively refer to the illegal

maintenance or operation of a production facility for a controlled

dangerous substance and distribution of a contr olled substance.

7

Jovanovic, 416 A.2d 961, 965 (N.J. Super . Ct. 1980). Based

on the Model Penal Code as its conceptual sour ce, see

Jovanovic, 416 A.2d at 631, New Jersey defines solicitation

as " `no more than asking or enticing someone to commit a

crime.' " Sunzar, 751 A.2d at 630 (quoting State v. Gay, 486

P.2d 341, 345 (Wash. Ct. App. 1971)).

In Williams, this Court refused to apply Dolt to

convictions under S 843(b), and left open as well the

question of whether solicitation convictions may be

considered a controlled substance of fense. See Williams,

176 F.3d at 717 n.4. We need not r each that issue in this

case. The New Jersey statute of conviction her e criminalizes

five different acts (i.e., using, soliciting, directing, hiring or

employing) related to exploiting a juvenile in a drug

distribution scheme. Even if we were to find that mere

solicitation of a juvenile does not qualify as a controlled

substance offense, some of the other criminalized acts in

the New Jersey statute clearly do qualify, such as the use,

employment or direction of a juvenile. Because the record

is unclear for which act Shabazz was formerly charged and

the statute criminalizes different acts that may or may not

be controlled substance offenses, we look past the words of

the statute to the "conduct of which the defendant was

convicted." U.S.S.G. S 4B1.2 app. n.2.

Evidence of the conduct underlying Shabazz's violation of

N.J.S. S 2C:35-6 is provided in the pr esentence report and

the state court's opinion denying post conviction r elease.

According to the presentence report, Newark police officers

were conducting surveillance and observed Shabazz and

two others conducting drug sales.5 One of the two other

dealers was a juvenile. The New Jersey court r ecounted the

facts as follows: "[D]efendant acknowledged that he `used

S.G.,' a 17-year old juvenile, `as a lookout' while preparing

to sell a large quantity of cocaine." State v. Shabazz, 622

A.2d 914, 915 (N.J. Super. Ct. App. Div. 1993). This

sufficiently demonstrates that Shabazz was caught past the

point of solicitation and was actually using others,

including a juvenile, to facilitate the distribution of a drug.

_________________________________________________________________

5. It is important to note that Shabazz did not object to the probation

officer's description of his underlying conduct.

8

Thus his conduct would be sufficient to qualify as a

controlled substance offense.

* * *

For the foregoing reasons, the judgment of the District

Court is affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

9