USA v. Jerry Alexander, Jr.

Filing

Per Curiam OPINION filed: AFFIRMED. Decision not for publication. Gilbert S. Merritt, Circuit Judge; Ronald Lee Gilman, Circuit Judge and Bernice Bouie Donald, Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0218n.06
No. 16-5494
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JERRY WAYNE ALEXANDER, JR.,
Defendant-Appellant.

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Apr 12, 2017
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
TENNESSEE

BEFORE: MERRITT, GILMAN, and DONALD, Circuit Judges.
PER CURIAM. Jerry Wayne Alexander, Jr., appeals his judgment of conviction and
sentence. As set forth below, we affirm.
After a four-day trial, a jury convicted Alexander of conspiracy to distribute less than 28
grams of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. At sentencing, the district
court classified Alexander as a career offender based on his prior convictions and calculated the
career offender range as 262 to 327 months of imprisonment. The district court granted a
downward variance from that range and sentenced Alexander to 200 months of imprisonment.
This timely appeal followed.
Alexander first contends that the district court improperly relied on state-court judgments
to establish his predicate offenses for career-offender status, rendering his sentence procedurally
and substantively unreasonable. We review de novo the district court’s determination that a

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prior conviction qualifies as a predicate offense under the career-offender guideline. United
States v. Baker, 559 F.3d 443, 450 (6th Cir. 2009).
Pursuant to USSG § 4B1.1(a), a defendant is a career offender if (1) the defendant was at
least eighteen years old at the time of the instant offense, (2) the instant offense 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.”

Alexander’s

presentence report identified the following Tennessee convictions as predicate offenses for his
career-offender status:

(1) his 1998 convictions for attempted second-degree murder and

aggravated assault, (2) his 2007 drug conviction, and (3) his 2007 aggravated-assault
convictions.
Alexander argues that, under Shepard v. United States, 544 U.S. 13 (2005), the statecourt judgments presented by the government were insufficient to establish his predicate offenses
for application of the career-offender guideline. In Shepard, the Supreme Court held that, under
the modified categorical approach for statutes with multiple alternative elements, the sentencing
court may look to “the terms of the charging document, the terms of a plea agreement or
transcript of colloquy between judge and defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable judicial record of this information,” id. at 26,
“to determine what crime, with what elements, a defendant was convicted of,” Mathis v. United
States, 136 S. Ct. 2243, 2249 (2016).
Contrary to Alexander’s argument, we have held that “state-court judgments are valid
Shepard documents.” United States v. Moore, 578 F. App’x 550, 554 (6th Cir. 2014); see United
States v. Cooper, 739 F.3d 873, 881 (6th Cir. 2014). The judgments for Alexander’s aggravatedassault convictions show that he was convicted of Class C felonies. This court has held that
Tennessee Class C aggravated assaults are crimes of violence under the career-offender
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guideline.

See Cooper, 739 F.3d at 881-83.

The original and revocation judgments for

Alexander’s drug conviction together show that he was convicted of possession of less than .5
grams of cocaine for resale, a Class C felony, in violation of Tennessee Code Annotated § 39-17417, which is a controlled-substance offense under the career-offender guideline. See United
States v. Douglas, 563 F. App’x 371, 378 (6th Cir. 2014) (“Section 39-17-417 is a categorical
controlled substance offense.”). Alexander makes no argument about his attempted seconddegree murder conviction. The district court therefore properly classified Alexander as a career
offender based on his prior convictions as evidenced by the state-court judgments.
Alexander next argues that the district court erred in relying on his statement to police to
determine the drug quantity attributable to him, asserting that his statement described activities
unrelated to the charged conspiracy.

As Alexander concedes, this issue is relevant to the

guidelines calculation only if this court “set[s] aside the application of the [c]areer offender
guideline.” Because the district court properly applied the career-offender guideline to calculate
Alexander’s sentencing range, we need not address his argument about the drug quantity.
Finally, Alexander contends that the district court abused its discretion in admitting
evidence about two controlled buys of crack cocaine. We review the district court’s evidentiary
ruling for abuse of discretion. United States v. Morales, 687 F.3d 697, 701-02 (6th Cir. 2012).
“A court abuses its discretion when it ‘relies on clearly erroneous findings of fact, improperly
applies the law, or employs an erroneous legal standard,’ or when we are ‘firmly convinced’ that
the trial court ‘committed a clear error of judgment.’” United States v. Kilpatrick, 798 F.3d 365,
378 (6th Cir. 2015) (quoting United States v. Miner, 774 F.3d 336, 348 (6th Cir. 2014)).
At trial, an officer with the Red Bank Police Department testified that a confidential
informant made two controlled purchases of crack cocaine at 538 Gadd Road, Alexander’s
residence, obtaining field weights of .8 grams on October 10, 2013, and .7 grams on October 11,
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2013. Alexander argues that there was no evidence connecting these controlled purchases to him
or to the charged conspiracy because the officer could not testify that Alexander sold the crack
cocaine to the confidential informant.

But in a recorded telephone call introduced by the

government, Alexander attempted to figure out the identity of the confidential informant, stating
that “there was somebody that he sold eight and seven to.” The jury could reasonably infer that
Alexander was referencing the two controlled purchases involving .8 and .7 grams. The district
court therefore did not abuse its discretion in allowing the evidence of these controlled
purchases.
For these reasons, we AFFIRM the district court’s judgment.

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