USA v. Gino Solomon

Filing

OPINION filed: For the reasons set forth above, we AFFIRM Solomon's sentence. Decision not for publication. Alice M. Batchelder, Ronald Lee Gilman, and Julia Smith Gibbons (AUTHORING), Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0855n.06

FILED

No. 13-2258

Nov 14, 2014
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,

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Plaintiff-Appellee,
v.
GINO ANTONIO SOLOMON,
Defendant-Appellant.

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN

BEFORE: BATCHELDER, GILMAN, and GIBBONS, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Gino Solomon pled guilty to three counts
of drug manufacture and possession, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846,
and was sentenced to 72 months in prison on each count to run concurrently, which was below
the guideline range. He now appeals his sentence, challenging his designation as a career
offender and also challenging the court’s finding of offense-level enhancements for possessing a
firearm and maintaining a drug premises that would have applied if he had not been a career
offender. We affirm.
I.
We first consider Solomon’s contention that the district court erred in determining that he
was a career offender under § 4B1.1(a) of the Sentencing Guidelines. This presents a question of
law that we review de novo. United States v. Montanez, 442 F.3d 485, 488 (6th Cir. 2006).

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Section 4B1.1(a) of the 2012 Sentencing Guidelines (the version in effect at the time
Solomon was sentenced) provides that a defendant is a career offender if:
(1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a crime of
violence or a controlled substance offense; and (3) the defendant
has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.
Solomon does not dispute that he was well over eighteen years old at the time he
committed the drug offenses for which he was convicted in this case, and those drug offenses
unquestionably are “controlled substance offenses” under the Sentencing Guidelines.1 Solomon
argues, however, that he did not have two qualifying prior felony convictions as required by
clause (3). Specifically, although Solomon acknowledges that his June 2010 felony conviction
in Oakland County, Michigan, for delivery of marijuana was a qualifying conviction under the
career offender guideline, he contends that his May 2010 conviction for attempted possession of
marijuana with intent to deliver—a violation of Mich. Comp. Laws § 333.7401—was
categorized in state court as a two-year misdemeanor, not a felony. These were the predicate
felony convictions for the district court’s determination that Solomon was a career offender.
To determine whether a prior conviction is a qualifying conviction under the career
offender guideline, the court generally applies a “categorical” approach, “which means that it
focuses on the statutory definition of the offense, rather than the manner in which an offender
may have violated the statute in a particular circumstance.” United States v. Denson, 728 F.3d
603, 607 (6th Cir. 2013) (citing Sykes v. United States, 131 S. Ct. 2267, 2272 (2011)). Mich.

1

“Controlled substance offense” is defined in § 4B1.2(b) of the Sentencing Guidelines as “an offense under
federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture,
import, export, 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.”

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Comp. Laws § 333.7401 prohibits “manufactur[ing], creat[ing], deliver[ing], or possess[ing]
with intent to manufacture, create, or deliver a controlled substance, a prescription form, or a
counterfeit prescription form.” Therefore, it is possible for § 333.7401 to be violated in a way
that constitutes a controlled substance offense for purposes of § 4B1.2(b) of the Sentencing
Guidelines (manufacturing, creating, or delivering a controlled substance, or possessing a
controlled substance with intent to do any of those), and it is possible for § 333.7401 to be
violated in a way that does not constitute a controlled substance offense for purposes of
§ 4B1.2(b) of the Sentencing Guidelines (manufacturing, creating, delivering, or possessing a
prescription form or counterfeit prescription form). In such a situation, courts use the “modified
categorical approach” to determine under which element of the statute the defendant was actually
convicted. Denson, 728 F.3d at 608. The modified categorical approach “permits sentencing
courts to consult a limited class of documents . . . to determine which alternative formed the
basis of the defendant’s prior conviction.” Descamps v. United States, 133 S. Ct. 2276, 2281
(2013); see also Shepard v. United States, 544 U.S. 13, 16 (2005) (identifying a defendant’s
“written plea agreement” for a prior conviction as one of the types of documents that a
sentencing court can consult).
Applying the modified categorical approach, we consult Solomon’s written plea
agreement for his May 2010 conviction and determine that Solomon was convicted of attempted
possession with intent to deliver marijuana, in violation of Mich. Comp. Laws
§ 333.7401(2)(d)(iii), which covers “less than 5 kilograms or fewer than 20 plants” of marijuana.
This is the lowest-level marijuana violation under the statute and even it provides for
imprisonment up to 4 years. Mich. Comp. Laws § 333.7401(2)(d)(iii). That statutory maximum
is cut in half, to two years, where the offense was an attempt. Mich. Comp. Laws § 750.92.

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Solomon’s conviction therefore was for a controlled substance offense within the meaning of
§ 4B1.2(b) of the Guidelines: it was for possession of a controlled substance with intent to
“distribute,” because “deliver” plainly falls within the meaning of “distribute” in § 4B1.2(b), and
it was punishable by imprisonment for a term exceeding one year. The fact that Solomon was
convicted of attempted possession does not change this conclusion: Application Note 1 to
§ 4B1.2 of the Guidelines makes clear that “controlled substance offense” includes attempt to
commit a controlled substance offense.
Furthermore, Solomon’s May 2010 conviction for a controlled substance offense does
count as a prior felony conviction for purposes of the Guidelines because it was punishable by
imprisonment exceeding one year. Application Note 1 to § 4B1.2 of the Guidelines instructs that
“prior felony conviction” refers to “a prior adult federal or state conviction for an offense
punishable by death or imprisonment for a term exceeding one year, regardless of whether such
offense is specifically designated as a felony and regardless of the actual sentence imposed.”
Solomon’s protestation that the offense was designated as a “two year misdemeanor” is therefore
immaterial.
Solomon therefore had two prior felony convictions for controlled substance offenses and
was a career offender under the Guidelines. Having correctly determined that Solomon was a
career offender, the district court did not err in its calculation of a guideline range of 84 to 105
months. Section 4B1.1(b) of the Sentencing Guidelines establishes that a career offender’s
criminal history category is VI, and his offense level is determined by the statutory maximum
sentence for the offense of conviction. In Solomon’s case, the statutory maximum sentence of
imprisonment, as defined at 21 U.S.C. § 841(b)(1)(D), was 10 years because Solomon had a

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prior conviction for a felony drug offense.2 Solomon’s offense level therefore was 24. The court
deducted two points from Solomon’s offense level because he had clearly accepted responsibility
for the charges to which he pled guilty. Solomon’s final offense level therefore was 22 and his
criminal history category was VI, which equated to a guideline range of 84 to 105 months.
U.S.S.G. Ch. 5, Pt. A, Sentencing Table. The court departed downward from the guideline range
and sentenced Solomon to 72 months on each count to run concurrently. Solomon’s appeal is
solely about the scoring of his sentencing guidelines and he does not challenge the district
court’s downward departure.
II.
Because Solomon had an offense level of 22 and criminal history category of VI solely
based on his career offender status, we need not determine whether the district court erred in the
firearm-possession and drug-premises offense level increases that Solomon also challenges.
Each of those would have constituted a two-level increase on top of a base offense level of 12,
which was set out in Solomon’s Presentence Investigation Report (PSR) and to which Solomon
does not object on appeal. After subtracting 2 points for acceptance of responsibility, Solomon
would have had a final offense level of 14 with a criminal history category of III, 3 which would
correspond to a guideline range of 21 to 27 months. However, all of that was overridden by the
correct finding that Solomon was a career offender, which by itself increased his criminal history
category to VI and his offense level to 24 (before two offense-level points were subtracted for
acceptance of responsibility). See U.S.S.G. § 4B1.1(b) (“Except as provided in subsection (c), if
the offense level for a career offender from the table in this subsection is greater than the offense
2

“Felony drug offense” is defined at 21 U.S.C. § 802(44) as “an offense that is punishable by
imprisonment for more than one year under any law of the United States or of a State or foreign country that
prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant
substances.”
3
Solomon also does not contest the finding set forth in the PSR that he had a criminal history category of
III before his career offender status raised it to category VI.

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level otherwise applicable, the offense level from the table in this subsection shall apply.”).
Therefore any error in finding the firearm-possession and drug-premises offense level increases
had no effect on Solomon’s sentence.
III.
For the reasons set forth above, we affirm Solomon’s sentence.

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