Opposition Brief — Timothy A. Ward, Petitioner v. United States

Supreme Court briefMay 26, 2021

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No. 20-7327

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

TIMOTHY A. WARD, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Acting Solicitor General

Counsel of Record

NICHOLAS L. MCQUAID

Acting Assistant Attorney General

JENNY C. ELLICKSON

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether

petitioner’s

Virginia

convictions

for

possessing

heroin with intent to distribute, in violation of Va. Code Ann.

§ 18.2-248

(2009),

were

convictions

for

“controlled

offense[s]” under Sentencing Guidelines § 4B1.2(b).

(I)

substance

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 20-7327

TIMOTHY A. WARD, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-16a) is

reported at 972 F.3d 364.

The order of the district court (Pet.

App. 17a-21a) is unreported but is available at 2018 WL 9848286.

JURISDICTION

The judgment of the court of appeals was entered on August

20, 2020.

A petition for rehearing was denied on September 29,

2020 (Pet. App. 22a).

The petition for a writ of certiorari was

filed on February 26, 2021.

The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

2

STATEMENT

Following a guilty plea in the United States District Court

for the Eastern District of Virginia, petitioner was convicted of

distributing

cocaine,

in

violation

Judgment 1; see Pet. App. 1a.

of

21

U.S.C.

841(a)(1).

The district court sentenced

petitioner to 120 months of imprisonment, to be followed by three

years of supervised release.

court of appeals affirmed.

1.

Judgment 2-3; see Pet. App. 1a.

The

Pet. App. 1a-16a.

In 2017, petitioner sold 0.1645 grams of cocaine to a

confidential source.

Pet. App. 2a; C.A. App. 157-158 ¶ 5.

A grand

jury in the Eastern District of Virginia indicted petitioner for

distributing cocaine, in violation of 21 U.S.C. 841(a)(1) and

(b)(1)(C).

Indictment 1-2; see Pet. App. 2a.

guilty to that offense.

Before

Judgment 1; see Pet. App. 2a.

sentencing,

petitioner

qualified

Petitioner pleaded

the

as

Guidelines § 4B1.1(a).

a

Probation

career

Office

offender

determined

under

that

Sentencing

Pet. App. 2a; C.A. App. 159 ¶ 18.

As

relevant here, Section 4B1.1(a) increases a defendant’s advisory

sentencing range where, inter alia, he has at least two prior

felony

convictions

Sentencing

Guidelines

for

§

a

“controlled

4B1.1(a).

The

substance

offense.”

Guidelines

define

a

“controlled substance offense” as “an offense under federal or

state law, punishable by imprisonment for a term exceeding one

year,

that

prohibits

the

manufacture,

import,

export,

3

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.”

Id. § 4B1.2(b).

The Probation Office found that petitioner had a 2001 federal

conviction for possessing crack cocaine with intent to distribute,

a 2011 Virginia conviction for possessing heroin with intent to

distribute, and a 2011 Virginia conviction for manufacturing,

selling, distributing, or possessing with intent to distribute a

controlled substance.

App. 2a, 17a.

C.A. App. 169-173 ¶¶ 48, 52, 54; see Pet.

Both of petitioner’s Virginia convictions arose

under Va. Code Ann. § 18.2-248 (2009), which makes it unlawful

“for any person to manufacture, sell, give, distribute, or possess

with intent to

* * *

distribute a controlled substance or an

imitation controlled substance.”

Ann. § 18.2-248(A) (2020)).

Pet. App. 18a (quoting Va. Code.

The court records for the second

Virginia conviction indicated that it, like the first, rested on

petitioner’s possession of heroin with intent to distribute.

C.A.

App. 173 ¶ 54; see Pet. App. 2a, 17a. Applying the career-offender

Guideline, the Probation Office classified petitioner as a career

offender

under

Section

4B1.1(a)

and

calculated

an

advisory

guidelines range of 151 to 188 months of imprisonment.

Pet. App.

2a (quoting C.A. App. 159); see C.A. App. 183 ¶ 105.

4

Petitioner acknowledged that his prior federal conviction

counted

as

a

“controlled

substance

offense”

under

Section 4B1.2(b), but objected to his classification as a career

offender, arguing that neither of his Virginia convictions was a

“controlled substance offense” because Virginia’s schedules of

controlled substances include one substance, Salvinorin A, that is

not listed on the federal schedules of controlled substances. Pet.

App. 2a, 17a-19a; see C.A. App. 71-101.

overruled

petitioner’s

objection,

The district court

finding

that

Sentencing

Guidelines § 4B1.2(b) “unambiguously cover[ed]” petitioner’s two

Virginia convictions.

App. 101.

Pet. App. 19a; see id. at 17a-21a; C.A.

The court accordingly classified petitioner as a career

offender under Section 4B1.1(a) and adopted the Probation Office’s

calculation of petitioner’s advisory guidelines range.

C.A. App.

124, 189.

Before announcing petitioner’s sentence, the district court

observed that petitioner had engaged in “an unremitting pattern of

violating the law,” C.A. App. 123, and had incurred “significant

penalties” for his prior drug offenses that did not “seem to have

gotten his attention,” id. at 118.

126-127.

See id. at 104-107, 116-117,

The court also determined, however, that categorizing

petitioner as a career offender led to an advisory guidelines range

that

was

higher

than

what

particular defendant’s case.”

was

“required

to

deal

with

this

Id. at 118; see id. at 120-121,

5

126.

The court additionally found the sentencing factors in 18

U.S.C. 3553(a) counseled against imposing a sentence that treated

petitioner like “a kingpin in the drug organization or a violent

person.”

C.A. App. 118; see id. at 118-119, 128.

The court

sentenced petitioner to 120 months of imprisonment (31 months below

the bottom of the advisory sentencing range), to be followed by

three years of supervised release.

Id. at 128; Judgment 2-3; Pet.

App. 2a.

2.

The court of appeals affirmed.

Pet. App. 1a-16a.

The court of appeals determined that the district court

correctly recognized that petitioner satisfied the prerequisites

for classification as a career offender under the Sentencing

Guidelines

because

his

two

Virginia

drug

convictions

“categorically qualify” as controlled substance offenses under

Section 4B1.2(b).

Pet. App. 7a; see id. at 2a-8a.

rejected petitioner’s

contention

that

a

“controlled

The court

substance

offense” under Section 4B1.2(b) that arises under state law must

be limited solely to controlled substances under federal law and

cannot reach a substance regulated by the state of conviction

itself.

Id. at 2a-8a.

The court observed that petitioner’s

argument was inconsistent with “the structure of the Guidelines”

because,

even

though

various

Section

4B1.2

itself,

show

Guidelines

provisions,

including

that

Sentencing

Commission

the

“understood how to cross-reference other federal provisions and

6

definitions,”

Section

4B1.2

“refers

neither

to

the

federal

definition of a ‘controlled substance’ nor to the federal drug

schedule.”

Id. at 6a.

The court thus found “no textual basis to

engraft the federal Controlled Substances Act’s definition of

‘controlled substance’ into the career-offender guideline.”

Ibid.

(quoting United States v. Ruth, 966 F.3d 642, 654 (7th Cir. 2020),

cert. denied, 141 S. Ct. 1239 (2021)).

The court of appeals also rejected petitioner’s reliance on

“the Jerome presumption,” under which courts “‘generally assume,

in the absence of a plain indication to the contrary, that Congress

when it enacts a statute is not making the application of the

federal act dependent on state law.’” Pet. App. 6a (quoting Jerome

v. United States, 318 U.S. 101, 104 (1943)).

The court determined

that, even “[a]ssuming the Jerome presumption should be applied to

Guidelines

promulgated

by

the

presumption was “overcome here.”

Sentencing

Commission,”

Id. at 7a.

the

Observing that

Section 4B1.2(b) provides that “‘[t]he term “controlled substance

offense” means an offense under federal or state law,’” the court

explained that “the Commission has specified that we look to either

the federal or state law of conviction to define whether an offense

will qualify” as a controlled substance offense.

Ibid. (quoting

Sentencing Guidelines § 4B1.2(b)).

Judge Gregory concurred in the judgment.

Pet. App. 8a-16a.

Because the court of appeals had recently determined that Va. Code

7

Section 18.2-248 “is divisible by the identity of the controlled

substance,”

petitioner’s

Pet.

App.

sentence

9a,

Judge

on

the

Gregory

ground

would

that

have

affirmed

petitioner

had

a

conviction under that law for an offense involving heroin, which

“is also a substance controlled under federal law.”

see id. at 8a.

Id. at 10a;

But Judge Gregory disagreed with the court’s

determination that “controlled substance” in Section 4B1.2 may

“refer[] to substances controlled solely under state law.”

Id. at

13a; see id. at 11a-16a.

ARGUMENT

Petitioner contends (Pet. 8-30) that his prior Virginia drug

convictions are not “controlled substance offense[s]” within the

meaning of Sentencing Guidelines § 4B1.2(b) and that the district

court

therefore

erred

in

determining

that

he

prerequisites for a career-offender enhancement.

satisfies

the

Because the

question presented involves the interpretation of the Sentencing

Guidelines, the petition for a writ of certiorari does not warrant

this Court’s review.

In any event, the court of appeals correctly

rejected petitioner’s contention.

And this case would be an

unsuitable vehicle for reviewing any disagreement among the courts

of appeals regarding the application of Section 4B1.2(b), because

petitioner would not be entitled to relief from his sentence even

in the circuits that have adopted his preferred interpretation of

that provision.

This Court recently denied a petition for a writ

8

of certiorari raising a similar issue, see Ruth v. United States,

141 S. Ct. 1239 (2021) (No. 20-5975), and the same result is

warranted here.

1.

This

Court

ordinarily

does

not

review

decisions

interpreting the Sentencing Guidelines, because the Sentencing

Commission can amend the Guidelines to eliminate any conflict or

correct any error.

See Braxton v. United States, 500 U.S. 344,

347-349

Congress

(1991).

has

charged

the

Commission

with

“periodically review[ing] the work of the courts” and making

“whatever

clarifying

revisions

to

judicial decisions might suggest.”

the

Guidelines

conflicting

Id. at 348 (citing 28 U.S.C.

994(o) and (u)); see United States v. Booker, 543 U.S. 220, 263

(2005) (“The Sentencing Commission will continue to collect and

study appellate court decisionmaking.

It will continue to modify

its Guidelines in light of what it learns, thereby encouraging

what it finds to be better sentencing practices.”).

Review by

this Court of Guidelines decisions is particularly unwarranted in

light of Booker, which rendered the Guidelines advisory only.

543

U.S. at 243; cf. Pet. App. 2a (observing that petitioner received

a sentence below the guidelines range the district court deemed

applicable).

No sound reason exists to depart from that practice here.

The

Commission

has

carefully

attended

to

Section

4B1.2’s

definition of “controlled substance offense,” amending it multiple

9

times.

See, e.g., Sentencing Guidelines § 4B1.2(2) (1987); id.

§ 4B1.2(2) (1989).

The Commission initially defined the term by

reference to the Controlled Substances Act, id. § 4B1.2(2) (1987),

then by reference to specific provisions of federal law, id.

§ 4B1.2(2) (1988), and then by replacing the cross-references to

federal law with a broad reference to “federal or state law” that

prohibits certain conduct, id. § 4B1.2(2) (1989).

See United

States v. Ruth, 966 F.3d 642, 652 (7th Cir. 2020), cert. denied,

141 S. Ct. 1239 (2021). More generally, the Commission has devoted

considerable

attention

in

recent

years

to

the

“definitions

relating to the nature of a defendant’s prior conviction,” and it

continues to work “to resolve conflicting interpretations of the

guidelines by the federal courts.”

(June 9, 2016).

Recognizing

Guidelines

81 Fed. Reg. 37,241, 37,241

This Court’s intervention would not be warranted.

that

decisions,

this

Court

petitioner

does

contends

“will not settle” the asserted conflict.

omitted); see also Pet. 8.

not

that

normally

the

review

Commission

Pet. 24 (capitalization

But his only support for this assertion

is that the Commission has not yet acted.

That assertion lacks merit.

See Pet. 8, 24-25, 29.

Any disagreement between the courts

of appeals on this question has emerged only recently, see pp. 1517,

infra,

and

the

opinion

below,

which

petitioner

himself

characterizes (Pet. 15) as the most “thorough” decision rejecting

his position, was issued only nine months ago, during a period

10

when the Commission has lacked a quorum, see U.S. Sent. Comm’n,

Organization, https://www.ussc.gov/about/who-we-are/organization.

To the extent that any inconsistency requires intervention, the

Commission would be able to address it.

See Longoria v. United

States, 141 S. Ct. 978, 979 (2021) (Sotomayor, J., respecting the

denial of the petition for a writ of certiorari) (observing, with

respect to another Guidelines dispute, that the “Commission should

have the opportunity to address th[e] issue in the first instance,

once it regains a quorum of voting members”) (citing Braxton, 500

U.S. at 348).

2.

In any event, the court of appeals’ decision is correct

and does not warrant further review.

The term “controlled substance” in Section 4B1.2 is defined

to encompass “an offense under

prohibits

with

* * *

intent

§ 4B1.2(b).

to

* * *

that

the possession of a controlled substance

* * *

* * *

* * *

distribute.”

state law,

Sentencing

Guidelines

Petitioner’s prior convictions were for violating Va.

Code Section 18.2-248, a provision of state law that prohibits, in

relevant part, “possess[ing] with intent to

* * *

distribute a

controlled substance.” Va. Code Ann. § 18.2-248(A) (2009). “[T]he

identity of the prohibited substance is an element of Virginia

Code § 18.2-248,” and “the statute is divisible on that basis.”

Cucalon v. Barr, 958 F.3d 245, 253 (4th Cir. 2020).

Accordingly,

“each substance listed on the Virginia schedules” of controlled

11

substances “‘goes toward a separate crime.’”

Id. at 252 (quoting

Mathis v. United States, 136 S. Ct. 2243, 2257 (2016)).

In petitioner’s case, the specific substance that formed the

basis of his prior Virginia convictions was heroin.

See Pet. App.

2a, 17a; see also id. at 10a (Gregory, J., concurring in the

judgment) (recognizing that relevant documents established that

one of petitioner’s Virginia convictions involved heroin); C.A.

App. 171-173 ¶¶ 52, 54.

Because heroin is a substance whose use

is restricted by Virginia law,

(2008)

(Schedule

I

of

see Va. Code Ann. § 54.1-3446(2)

Virginia’s

schedules

of

controlled

substances), it falls squarely within the ordinary meaning of

“controlled substance,” namely, “ ‘any of a category of behavioraltering or addictive drugs, as heroin or cocaine, whose possession

and use are restricted by law.’ ”

Ruth, 966 F.3d at 654 (quoting

The Random House Dictionary of the English Language (2d ed. 1987)).

Indeed, Virginia law itself underscores that ordinary meaning,

specifically labeling heroin a “controlled substance.”

Ann.

§ 54.1-3401

(2008)

(defining

“Controlled

Va. Code

Substance”

to

include a drug listed on Schedule I of Virginia’s schedules of

controlled substances).

Petitioner

Virginia

resists

convictions

as

(Pet.

4-6)

convictions

the

for

classification

controlled

of

his

substance

offenses, asserting that Section 4B1.2(b) implicitly incorporates

the federal Controlled Substances Act’s schedule of controlled

12

substances, which does not include some of the substances listed

on Virginia’s schedules of controlled substances.

& n.2; Pet App. 1a.

See Pet. 4, 10

But Section 4B1.2 “does not incorporate,

cross-reference, or in any way refer to the Controlled Substances

Act.”

Ruth, 966 F.3d at 651; see Pet. App. 6a.

Nor does it

contain any other textual indication that it is limited in scope

to federally prohibited conduct.

See Pet. App. 5a-6a (observing

that the argument that Section 4B1.2(b) is limited “to state

offenses that define substances just as federal law defines them”

“ignores

the

plain

meaning

of

[Section]

4B1.2(b)”).

To

the

contrary, Section 4B1.2(b) defines a controlled substance offense

as an offense “under federal or state law,” Sentencing Guidelines

§ 4B1.2(b) (emphasis added), specifically “refer[ring] us to state

law in defining the offense.”

Pet. App. 7a.

It accordingly

applies to offenses involving substances controlled under federal

or

relevant

state

law.

And

the

unadorned

term

“controlled

substance” is a natural one to use in a general description of

federal and state drug crimes, which focus on unlawful activities

involving a product that the relevant jurisdiction regulates.

The

court of appeals correctly discerned “no textual basis to engraft

the federal Controlled Substances Act’s definition of ‘controlled

substance’ into the career-offender guideline.” Id. at 6a (quoting

Ruth, 966 F.3d at 654).

13

The use of the term “controlled substance” is particularly

unlikely to be a silent cross-reference to the federal schedules

because “[t]he Sentencing Commission clearly knows how to crossreference federal statutory definitions when it wants to.”

Ruth,

966

itself

F.3d

at

651;

see

Pet.

App.

6a.

Section

4B1.2

incorporates definitions from federal statutes in defining the

terms “firearm” and “explosive material.”

Sentencing Guidelines

§ 4B1.2(a)(2) (referring to “a firearm described in 26 U.S.C.

§ 5845(a)”

and

§ 841(c)”).

Other provisions likewise define particular terms by

reference

to

“explosive

federal

material

law.

See,

§ 2D1.1, comment. (nn.4 & 6).

reference

of

“controlled

Controlled

Substances

as

e.g.,

in

Sentencing

18

U.S.C.

Guidelines

And the absence of any cross-

substance”

Act

defined

is

in

Section

especially

4B1.2

telling

to

the

because,

as

explained above (at p. 9, supra), the Commission amended Section

4B1.2 to remove a reference to the Controlled Substances Act,

replacing it with a broad definition that expressly includes “state

law”

offenses

controlled

that

prohibit

substance”

more

certain

conduct

generally.

related

Compare

to

“a

Sentencing

Guidelines § 4B1.2(2) (1987) (“The term ‘controlled substance

offense’ as used in this provision means an offense identified in

21 U.S.C. §§ 841, 952(a), 955, 955a, 959; §§ 405B and 416 of the

Controlled

Substance[s]

offenses.”),

with

Act

Sentencing

as

amended

Guidelines

in

1986,

§ 4B1.2(b)

and

similar

(“The

term

14

‘controlled substance offense’ means an offense under federal or

state law, punishable by imprisonment for a term exceeding one

year,

that

prohibits

distribution,

or

the

dispensing

of

manufacture,

import,

a

substance

controlled

export,

(or

a

counterfeit substance) or the possession of a controlled substance

(or a counterfeit substance) with intent to manufacture, import,

export, distribute, or dispense.”).

In any event, petitioner does not show that he would be

entitled to relief even under his preferred reading of Section

4B1.2(b).

As explained above, see pp. 10-11, supra, and as

petitioner now appears to acknowledge (Pet. 4), the Virginia

statute underlying petitioner’s prior convictions “is divisible by

prohibited substance.” *

Cucalon, 958 F.3d at 248.

The concurring

judge below accordingly found that petitioner would not be entitled

to relief even if Section 4B1.2 were implicitly limited to state

crimes involving federally controlled substances, see Pet. App.

9a-10a, and petitioner does not appear to argue otherwise.

This

Court does not grant a writ of certiorari to “decide abstract

questions of law

* * *

which, if decided either way, affect no

Petitioner took the opposite position in the court of

appeals, arguing that the Virginia statute was indivisible and

urging the court of appeals not to view the offense as limited to

heroin. Pet. C.A. Br. 16, 21-25, 33. To the extent that petitioner

now faults the court of appeals for taking the approach he

advocated, see Pet. 4-6, 16, his argument is barred by doctrines

of forfeiture, waiver, and invited error. See, e.g., United States

v. Olano, 507 U.S. 725, 733 (1993) (waiver and forfeiture); United

States v. Wells, 519 U.S. 482, 488 (1997) (invited error).

*

15

right” of the parties, Supervisors v. Stanley, 105 U.S. 305, 311

(1882), and should not do so here.

3.

The decision below accords not only in result, but also

in approach, with recent published decisions from at least two

other courts of appeals, which have likewise declined “to engraft

the federal Controlled Substances Act’s definition of ‘controlled

substance’” onto Section 4B1.2(b).

Ruth, 966 F.3d at 654 (7th

Cir.); see United States v. Smith, 775 F.3d 1262, 1267-1268 (11th

Cir. 2014), cert. denied, 576 U.S. 1013 (2015) (determining that

state convictions for possessing marijuana and cocaine with intent

to sell satisfy Section 4B1.2(b) because it does not require that

state offenses be similar to federal crimes); see also United

States v. Smith, 681 Fed. Appx. 483 (6th Cir.), cert. denied, 137

S.

Ct.

2144

(2017)

substances conviction

(determining

that

Illinois

controlled-

are “controlled substance offense[s]” under

Section 4B1.2(b) even though “Illinois may have criminalized”

conduct involving “some substances that are not criminalized under

federal law”).

Petitioner asserts (Pet. 16-17) that the Sixth and

Eleventh Circuits have “intra-circuit split[s]” on this issue, but

this Court ordinarily does not grant review to resolve intracircuit

conflicts.

See Wisniewski v. United States, 353 U.S. 901, 902

(1957) (per curiam) (“It is primarily the task of a Court of

Appeals to reconcile its internal difficulties.”).

16

Two courts of appeals have concluded that the term “controlled

substance” in Section 4B1.2(b) “refers exclusively to a substance

controlled by the” federal Controlled Substances Act.

United

States v. Townsend, 897 F.3d 66, 72 (2d Cir. 2018); see United

States v. Bautista, 989 F.3d 698, 702 (9th Cir. 2021).

Petitioner

also relies (Pet. 13) on the Eighth Circuit’s decision in United

States v. Sanchez-Garcia, 642 F.3d 658 (2011), but while the Eighth

Circuit did use the federal definition of “controlled substance”

in interpreting Section 4B1.2(b) in that case, id. at 661-662, it

did so in the course of agreeing with the government that the

Section 4B1.2(b) enhancement was applicable to the defendant, id.

at 662.

Moreover, the government did not dispute in that case

that the federal definition was relevant, instead arguing that (as

the court ultimately found) the definition was satisfied, see Gov’t

C.A. Br. at 12-17, Sanchez-Garcia, supra (No. 10-2266). Petitioner

additionally

contends

(Pet.

13-14)

that

the

Fifth

and

Tenth

Circuits have adopted his view of Section 4B1.2(b), but the cases

petitioner cites in support of that proposition do not interpret

Section 4B1.2(b) and instead address the commentary to other

Guidelines provisions.

See United States v. Gomez-Alvarez, 781

F.3d 787, 792-793 (5th Cir. 2015) (construing the definition of

“drug trafficking offense” in the commentary to Section 2L1.2);

United States v. Abdeljawad, 794 Fed. Appx. 745, 748 (10th Cir.

2019)

(construing

the

term

“controlled

substance”

in

the

17

commentary to Section 2D1.1).

Thus, although some courts of

appeals, like petitioner, view the circuit disagreement somewhat

more broadly, see Ruth, 966 F.3d at 653; Bautista, 989 F.3d at

702-703, any direct conflict is recent and limited.

That counsels

against this Court’s review and even more in favor of allowing the

Sentencing Commission the opportunity to address it.

See pp. 8-

10, supra.

4.

warranted

Even if the disagreement petitioner identifies otherwise

this

Court’s

review,

appropriate vehicle to resolve it.

this

case

would

not

be

an

First, as described above, see

pp. 14-15, supra, the concurring judge agreed with petitioner that

Section 4B1.2 implicitly incorporates the federal schedules but

found that petitioner was nevertheless not entitled to relief.

Petitioner does not explain why the outcome would be different in

another circuit.

career-offender

Second, any error in the application of the

enhancement

was

harmless

because

the

record

indicates that the district court would have imposed the same 120month sentence even without the career-offender enhancement.

Gov’t C.A. Br. 26-31.

See

18

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Acting Solicitor General

NICHOLAS L. MCQUAID

Acting Assistant Attorney General

JENNY C. ELLICKSON

Attorney

MAY 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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