Federal Career Offender - Analysis

In General

When a defendant qualifies as a career offender, he is automatically placed in a criminal history category VI and his base offense level is calculated by reference to the offense statutory maximum. In calculating what the offense statutory maximum is, the United States Supreme Court in United States v. LaBonte, 520 U.S. 751 (1997) decided that a sentencing court must consider the maximum sentence that could actually be imposed — meaning the maximum given all the appropriate enhancements. The government does not have to follow the notice requirements of 21 U.S.C. Section 851 in order to use a defendant's prior convictions to enhance his sentence as a career offender under the federal sentencing guidelines so long as the enhanced sentence still falls within the permissible statutory range. Young v. United States, 936 F.2d 533 (11th Cir. 1991). However, when deciding what the offense statutory maximum sentence is (which, in turn, dictates what base offense level will apply), the LaBonte Court held that the Section 851 notice must be filed in order to use the higher statutory maximum.

The guidelines do authorize the court to depart down when the application of the Career Offender provision overstates the defendant's prior criminal record. United States v. Webb, 139 F.3d 1390 (11th Cir. 1998). However, a 2003 amendment to the guidelines limits such departures to one criminal history category. U.S.S.G. Section 4A1.3(b)(3)(A). But ... there is a way to get around this amendment: In United States v. Williams, 435 F.3d 1350, the court considered the defendant's various Section 3553(a) factors and sentenced the defendant to 90 months instead of the career offender called for 188- to 235-month range. The 11th Circuit affirmed. Even though the 2003 amendment expressly prohibits a downward departure in a career offender case exceeding one criminal history category, the court's decision did not involve a "departure" under the guidelines but rather a "variance" under 3553(a). A defendant may not receive a minor or minimal role in the offense adjustment if he is sentenced as a career offender. United States v. Jeter, 329 F.3d 1229 (11th Cir. 2003).

Qualifying Prior Felonies

The 11th Circuit has held that Apprendi does not apply to the determination of whether the defendant has two prior felonies. Thus, the existence of the prior felonies need not be alleged in the indictment or proven beyond a reasonable doubt to a jury. It is a legal decision, not a factual decision, whether a prior conviction amounts to a felony that qualifies under the Career Offender provision. United States v. Gibson, 434 F.3d 1234 (11th Cir. 2006). In order to classify as a career offender, a defendant must have been sentenced twice in unrelated cases. Cases are related if they: (1) occurred on a single occasion, (2) were part of a single common scheme or plan, (3) were consolidated for trial or sentencing. When a defendant has two prior unrelated offenses, but for sentencing purposes they were consolidated, this does not qualify him as a career offender. United States v. Delvecchio, 920 F.2d 810 (11th Cir. 1991). A court is not permitted to question the validity of a prior conviction in determining whether the defendant is a career offender, unless the prior conviction was obtained in violation of the defendant's right to counsel. A court may also not consider the facts of the prior offense in deciding to depart downward. United States v. Phillips, 120 F.3d 227 (11th Cir. 1997).

Qualifying Crimes Of Violence

A prior state felony conviction based on a finding of guilty but mentally ill may be used as a predicate felony crime of violence. United States v. Bankston, 121 F.3d 1411 (11th Cir. 1997). The crime of being a felon in possession of a weapon is not a prior crime of violence. United States v. Stinson, 30 F.3d 121 (11th Cir. 1994). The Florida offense of carrying a concealed weapon is not a crime of violence. United States v. Patton, 114 F.3d 174 (11th Cir. 1997). A prior state court prosecution in which the defendant entered a nolo plea and adjudication was withheld can be used as a predicate felony for a career offender designation. United States v. Jones, 910 F.2d 760 (11th Cir. 1990). If one of the predicate offenses was committed when the defendant was not yet 18 years of age, only those prior convictions that resulted in an adult sentence of imprisonment exceeding one year and one month are to be considered as predicate felonies. Prior sentences that label the defendant as a "youthful offender" may be counted, and the court should consider the court that imposed the sentence (i.e., an "adult court") and whether the defendant received an "adult" sentence. United States v. Pinion, 4 F.3d 941 (11th Cir. 1993); United States v. Wilks, 464 F.3d 1240 (11th Cir. 2006). There are two approaches for classifying an offense as a crime of violence. The first approach is to determine whether the use, attempted use or threatened use of physical force against another is an element of the crime being considered. The second approach is to determine whether the crime involves conduct that, by its nature, presents a serious potential risk of injury to another. Once the court determines that the defendant has been convicted of a crime that usually involves a risk of harm, the inquiry ends. United States v. Archer, 531 F.3d 1347 (11th Cir. 2008).

Qualifying Controlled Substance Offenses

A prior state drug offense qualifies as a predicate career offender felony. United States v. Gonsalves, 121 F.3d 1416 (11th Cir. 1997). In evaluating whether a prior offense qualifies as a conviction for possession with intent to distribute, the court looks only at the elements of the offense of conviction and not at the underlying conduct. United States v. Lipsey, 40 F.3d 1200 (11th Cir. 1994). However, a court may not simply look at the arrest documents, because what the defendant was arrested for and what he was convicted of may differ, and the conviction is what controls. United States v. Hernandez, 145 F.3d 1433 (11th Cir. 1998). A conviction for attempt to sell or selling counterfeit controlled substances qualifies as a predicate offense. United States v. Frazier, 89 F.3d 1501 (11th Cir. 1996).

Appellate Review

In Buford v. United States, 532 U.S. 59 (2001), the Supreme Court held that appellate courts should utilize a deferential standard of review when reviewing a lower court's determination that prior offenses were consolidated and thus related for purposes of calculating the criminal history, or the applicability of the career offender provisions.

This deferential standard of review applies even where facts relating to the prior crimes and the imposition of the prior sentences are not disputed. See also United States v. Smith, 385 F.3d 1342 (11th Cir. 2004).