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D.C. Circuit Holds Attempted Drug Offenses Do Not Count Toward Career Criminal Designation

by Matt Clarke

The U.S. Court of Appeals for the D.C. Circuit held that prior convictions for attempted distribution of, and attempted possession with intent to distribute drugs, could not be used to render a criminal defendant a career offender under § 4Bl.l(a) of the U.S. Sentencing Guidelines. The Court remanded for resentencing and also for factual resolution of trial-related ineffective assistance of counsel claims. 

Aumbrey Winstead was a passenger in a vehicle driven by a man named George that rear-ended a vehicle stopped at an intersection in which Shervonne Murphy was the driver. George offered Murphy $20,000 not to call the police. The bulge of an apparent gun under Winstead’s shirt and his “totally wasted” behavior frightened Murphy, who called 9-1-1. Before police arrived, Murphy and her boyfriend, who had been a passenger in her vehicle, saw Winstead walk up a hill into the woods and return without a bulge in his shirt. 

Police handcuffed George and Winstead because they “were acting very squirrely.” During a pat search, they discovered a bulge and a wad of money in Winstead’s cargo pocket but did not remove them. They noticed Winstead nudge George’s leg and nod toward the woods. 

Suspicious of George and Winstead, one officer remained hidden behind a telephone booth when the other officers and both vehicles left. The vehicle Winstead was in returned shortly thereafter, and the officer saw Winstead jog to the woods and “pick up a shiny object.” Winstead received a call on his cellphone, dropped the object, lit a cigarette, and left the woods. Police arrested Winstead. A search of the woods turned up two pistols, one of them “shiny.” Police also found 25 Ziploc bags of cocaine and cash on Winstead. 

Winstead was charged with unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(l), possession with intent to distribute cocaine in violation of 18 U.S.C. §§ 84l(a)(l) and 84l(b)(l)(C), and possession of a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(l). 

While he was in jail, Winstead was recorded saying incriminating statements on the jail’s phones. During trial, he admitted to having been previously convicted of attempted possession with intent to distribute cocaine in 1998, attempted distribution of marijuana in 2002, and a previous violation of 18 U.S.C. § 922(g)(l). A jury convicted Winstead on all three charges.

The Sentencing Guidelines called for a range of punishment of 211-248 months. However, a defendant who has been convicted of violating 18 U.S.C. § 924(c)(l) and previously has been twice convicted of possession or distribution of a controlled substance is subject to sentencing as a career offender under § 4Bl.l(a) of the Sentencing Guidelines with a range of 360 months to life. The trial court found Winstead was a career offender based upon his previous convictions for attempted offenses and sentenced him to 360 months to life. With the assistance of the federal public defender, Winstead appealed. 

The D.C. Circuit noted that attempted offenses are not included in the text of § 4Bl.l. They are, however, added in the commentary to the guideline in Application Note 1. The U.S. Supreme Court has instructed that when commentary to a guideline and the guideline itself are inconsistent, “the Sentencing Reform Act itself commands compliance with the guideline.” Stinson v. United States, 508 U.S. 36 (1993). 

The D.C. Circuit observed that the guideline “presents a very detailed ‘definition’ of controlled substance offense that clearly excludes inchoate [attempted] offenses.” Yet the commentary in Application Note 1 purports to add attempted offenses within the purview of the guideline. As such, they are clearly inconsistent, and in such situations, Stinson dictates that the guideline controls. Thus, Winstead’s previous convictions for attempted offenses cannot serve as predicate convictions for a career offender sentence enhancement.

The Court took note of the fact that the First, Sixth, Eighth, Tenth, and Eleventh Circuits have all deferred to Application Note 1 and thus reached the opposite conclusion than the D.C. Circuit. The Court chided the Government for “its near-exclusive reliance on cases from outside this circuit” and its “failure to even address Winstead’s textual arguments….” The Court opined that the Government’s failure to address the text of the guideline itself is “quite revealing.”

Accordingly, the Court remanded the case for resentencing consistent with its opinion. See: United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018). 

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