Prior conviction confirmed by sentencing documents

Where the defendant argued that his state-court sentencing documents did not indisputably show he was convicted for a covered drug offense, but the sentencing sheet referred only to manufacture and possession with intent to distribute, and there was no reason to believe that Boyd, his attorney, the prosecutor and the judge “would all sign off on a sheet that was inaccurate in terms of what the defendant pled guilty to,” his argument was denied.

Background

Cory Boyd pleaded guilty to a drug offense and a related firearms offense in violation of federal law. He was sentenced as a career offender based on two prior state convictions: a 2007 conviction for assault with intent to kill, or AWIK, and a 2013 conviction for what the district court determined was possession of a controlled substance with intent to distribute, or PWID.

On appeal, Boyd first argues that the district court erred in relying on inconclusive state-court sentencing documents to find that Boyd’s 2013 drug conviction was, in fact, a conviction for PWID. Second, Boyd questions whether his 2007 AWIK conviction remains a crime of violence following the Supreme Court’s ruling in Borden v. United States, 141 S. Ct. 1817 (2021).

PWID

Some state statutes list elements “in the alternative, thereby defining multiple offenses.” For these divisible statutes, courts use a modified categorical approach which “examine[s] a limited class of documents to determine which of a statute’s alternative elements formed the basis of the defendant’s prior conviction.”

This limited class of documents — often called Shepard documents — includes “charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms,” as well as “comparable judicial record[s] of this information.” The first dispute is whether the Shepard documents show that Boyd was convicted of PWID instead of mere purchase or conspiracy, which are alternative ways to violate § 44-53-370(a)(1).

Boyd argues that the description of his offense on the sentencing sheet is unreliable because it matches the broad description generated by South Carolina’s Criminal Data Report code system for all first offenses penalized under §44-53-370(b)(2). Boyd claims that this broad offense description encompasses the purchase of drugs and conspiracy, as well as PWID. Thus, according to Boyd, there is no way to tell from the description used in his sentencing sheet that the offense to which he pleaded in 2013 was an offense for PWID as opposed to some other crime.

Yet Boyd’s sentencing sheet refers only to manufacture and possession with intent to distribute. As the district court explained, there is no reason to believe that six individuals — including Boyd, his attorney, the prosecutor and the judge — “would all sign off on a sheet that was inaccurate in terms of what the defendant pled guilty to.” This court is not alone in concluding that a South Carolina sentencing sheet with this description, or one similar to it, can prove a defendant’s offense by a preponderance of the evidence for guidelines purposes.

AWIK

Boyd additionally contends that he does not qualify as a career offender because his 2007 AWIK offense was not a crime of violence as defined by the guidelines. Boyd did not raise this argument in his opening brief to this Court. “It is a well settled rule that contentions not raised in the argument section of the opening brief are abandoned.” An exception exists, however, for claims based on “an intervening decision of this Court or the Supreme Court [that] affects precedent relevant to a case pending on direct appeal.”

Boyd seeks to invoke this exception by relying on the Supreme Court’s decision in Borden, which issued after briefing in this appeal was complete. But, by the time Boyd filed his opening brief, this court had already reached the conclusion that Borden would later adopt, reasoning that “the ACCA force clause requires a higher degree of mens rea” than recklessness. Indeed, Boyd raised this argument in his objections to the presentence report. Yet he chose not to pursue that argument in his opening brief on appeal, thereby waiving it for appellate review.

Affirmed.

Dissenting opinion

Harris, J., dissenting:

The government argues, and the majority agrees, that Shepard documents in this case establish that Boyd was convicted of possession with intent to distribute marijuana and not some other offense that would take him outside the scope of the guidelines provision. I disagree, and respectfully dissent.

United States v. Boyd, Case No. 18-4883, Nov. 30, 2022. 4th Cir. (Rushing), from DSC at Columbia (Wooten). Daniel Charles Leonardi for Appellant. Leesa Washington for Appellee. VLW 022-2-252. 22 pp.