United States v. Johnson, No. 12--1277 (6th Cir. Feb. 7, 2013) (for publication).
Panel of Judges Martin, Boggs, and Collier (E.D. Tenn.).
GL section 2D1.1(a)(1) for distribution of drugs resulting in death.
Defendant argued that prior conviction for delivery of heroin was not a "similar offense."
Ct of Appeals rejected this position and affirmed.
Base offense level 43 applied under 2D1.1(a)(1) b/c of prior conviction for delivery/manufacture of a controlled substance, less than 50 grams (involved 3.5 grams of heroin). This prior conviction did NOT involve death or serious bodily injury. So defendant argued it was not a qualifying offense for enhancement purposes to produce the BOL of 43. Government countered that "similar offense" just means "felony drug offense," as used in 21 U.S.C. 841(b)(1)(C), so enhancement applied.
* The GLs do not define "similar offense" in this context.
* 4A1.2, note 12 provides a list of factors to consider when determining the similarity of offenses. The COA said Chapter 4 is completely different from Chapter 2.
* Amendment 123 of the GLs (from 1989), the COA said, provides guidance. Originally, 2D1.1(a)(1) said "similar drug offense" meant one given in 21 U.S.C. 841(b) or 962(b). Amendment 123 removed this definition, and replaced it with the current language. The Sentencing Commission said the amendment was so the enhancement would apply only in the case of a conviction under circumstances given in the "statutes cited," namely 21 U.S.C. 841(b)(1)(C). Latter section uses the term "felony drug offense."
* COA found that 2D1.1(a)(1) and 21 U.S.C. 841(b)(1)(C) "mirror one another in several respects." The COA found that "2D1.1(a)(1) merely reinforces the enhanced penalty mandated by statute." The "Commission intended the term 'similar offense' to be synonymous with the term 'felony drug offense.'"
* The fact the prior was of a lesser magnitude did not sway the COA. Nor did the provisions of 21 U.S.C. 851, which requires the gov to file an information if it intends to seek an enhanced mand min for drug offenders with priors.
* Disproportionate-result argument did not win favor either. No 8th Am violation.
