Opposition Brief — Timothy A. Ward, Petitioner v. United States
Supreme Court briefMay 26, 2021
Ask Donna
What actually matters in this document.
Text
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.