                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-4-2000

United States v. Shabazz
Precedential or Non-Precedential:

Docket 99-5807




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Recommended Citation
"United States v. Shabazz" (2000). 2000 Decisions. Paper 244.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/244


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Filed December 4, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-5807

UNITED STATES OF AMERICA

v.

ABDUL   AZIZ SHABAZZ,
a/k/a   LEWIS ALVIN HAYES,
a/k/a   ALVIN HAYES,
a/k/a   ISIAH SIMMONS

Abdul Aziz Shabazz,
       Appellant

Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 97-cr-00339-2)
District Judge: Honorable Joseph A. Greenaway, Jr.

Submitted Under Third Circuit LAR 34.1(a)
August 11, 2000

Before: BARRY, AMBRO, and GREENBERG, Circuit Judges

(Opinion filed: December 4, 2000)

        PAUL W. BERGRIN, ESQUIRE
        Pope, Bergrin & Verdesco, P .A.
        572 Market Street
        Newark, New Jersey 07105

        Counsel for Appellant
         ROBERT S. CLEARY, ESQUIRE
         United States Attorney,
          District of New Jersey
         GEORGE S. LEONE, ESQUIRE
         Chief, Appeals Division
         MICHAEL MARTINEZ, ESQUIRE
         Assistant United States Attorney
         970 Broad Street
         Room 700
         Newark, New Jersey 07102

         Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge.

Section 4B1.1 of the United States Sentencing Guidelines
("U.S.S.G." or "Guidelines") provides for increased or
enhanced sentences for career offenders. 1 Conviction of
certain prior crimes (e.g., "contr olled substance offenses")
triggers the application of career offender status. This
appeal by Abdul Aziz Shabazz raises the question of
whether a prior state conviction for employing a juvenile in
a drug distribution ring is properly consider ed a controlled
substance offense pursuant to U.S.S.G. S 4B1.1. We
conclude that it is and thus affirm the judgment of the
District Court.

Jurisdiction properly existed in the District Court
pursuant to 18 U.S.C. S 3231. Jurisdiction in this Court is
pursuant to 28 U.S.C. S 1291 and 18 U.S.C.S 3742(a).
_________________________________________________________________

1. All citations are to the 1998 United States Sentencing Guidelines, the
Guidelines in effect at the time of Shabazz's sentencing. U.S.S.G.
S 4B1.1 reads in part:

         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 of fense of conviction is a
felony
       that is either a crime of violence or a contr olled substance
offense,
       and (3) the defendant has at least two prior felony convictions of
       either a crime of violence or a controlled substance offense.

                                 2
Shabazz's notice of appeal was timely filed. W e exercise
plenary review over a District Court's deter mination that an
offense constituted a controlled substance offense for
purposes of determining career of fender status under
U.S.S.G. S 4B1.1. See United States v. W illiams, 176 F.3d
714, 715 (3d Cir. 1999).

I.

On November 12, 1998, Shabazz pled guilty to conspiring
to possess heroin with the intent to distribute in violation
of 21 U.S.C. SS 846, 841(a)(1), and to possessing a
counterfeit security with intent to deceive in violation of 18
U.S.C. S 513(a). In anticipation of sentencing, a probation
officer prepared a presentence r eport. He determined that
Shabazz should be classified as a career of fender pursuant
to U.S.S.G. S 4B1.1. In making that finding, the probation
officer determined that (1) Shabazz was at least 18 years
old at the time of the offense, (2) the of fense was a
controlled substance offense under the Guidelines, and (3)
he had two prior felony convictions that are classified as a
crime of violence or a controlled substance of fense. See
U.S.S.G. S 4B1.1.

The probation officer determined that Shabazz had three
predicate convictions that supported the thir d prong of
S 4B1.1. Those prior felony convictions included (1) a 1988
New Jersey conviction for possession of a contr olled
substance with intent to distribute, (2) a 1989 New Jersey
conviction for employing a juvenile in a drug distribution
scheme, and (3) a 1982 New York conviction for second
degree robbery.

At sentencing, defense counsel objected to the use of the
latter two convictions to satisfy the third pr ong of S 4B1.1.
Specifically, counsel argued that (1) the crime of
employment of a juvenile in a drug distribution scheme is
akin to a solicitation conviction and thus not a controlled
substance offense as defined in the Guidelines, and (2) the
robbery conviction was not supported by adequate proof.

                               3
Over these objections, the District Court classified Shabazz
as a career offender predicated on the first two listed felonies.2

As a career offender, Shabazz's adjusted offense level was
29 and his criminal history category remained unchanged
at VI. This places his potential sentence within the range of
151-188 months. However, the District Court departed
downward pursuant to U.S.S.G. S 5K1.1 3 and sentenced
Shabazz to two concurrent prison terms of 72 months.

II.

The parties do not dispute that the first two pr ongs of
S 4B1.1 have been satisfied. The sole question for decision
is whether Shabazz's state conviction for employing a minor
in the distribution of a controlled substance is properly
classified as a predicate controlled substance offense
pursuant to U.S.S.G. S 4B1.1.

       The term "controlled substance of fense" means 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.

U.S.S.G. S 4B1.2(b).

In order to classify a prior conviction as a controlled
substance offense, the sentencing court should begin with
the language of the statute. If the statute of conviction is
clear, the court should not look beyond that statute's text.
See United States v. Hernandez, 218 F .3d 272, 279 (3d Cir.
_________________________________________________________________

2. The District Court noted however, that"if I were required to make a
finding, I believe there's a sufficient basis for this Court to conclude
that
Mr. Shabazz . . . was convicted of second degree robbery."

3. Section 5K1.1, entitled "Substantial Assistance to Authorities,"
provides: "Upon motion of the government stating that the defendant has
provided substantial assistance in the investigation or prosecution of
another person who has committed an offense, the court may depart
from the guidelines."

                               4
2000). However, if the statute of conviction is unclear or
broad enough to criminalize acts that ar e not properly
classified as a controlled substance of fense, the sentencing
court may look beyond the bare elements of the statute.
See id.; Williams, 176 F.3d at 716 n.3; see also United
States v. Casarez-Bravo, 181 F.3d 1074, 1077-78 (9th Cir.
1999) (allowing a court to look past the statutory definition
of a crime and to examine judicially noticeable facts or
documents that clearly establish the conviction to be a
predicate conviction for enhancement purposes); United
States v. Coleman, 158 F.3d 199, 202 (4th Cir. 1998) ("In
those narrow circumstances in which [a defendant] could
have been [convicted] in two ways, . . . a district court must
look past the fact of conviction and the elements of the
offense to determine which type of of fense supported the
defendant's conviction."); United States v. Palmer, 68 F.3d
52, 55-56 (2d Cir. 1995) ("If . . . the statute reaches both
conduct that satisfies these definitions and conduct that
does not, then the charging instrument and jury
instructions may be consulted to determine whether the
prior conviction was imposed for conduct that qualifies for
enhancement purposes.").

Significantly, in United States v. Her nandez, 145 F.3d
1433 (11th Cir. 1998), the Eleventh Cir cuit decided an
issue similar to the one this Court is asked to decide today.
In that case, a jury found the defendant, Modesto
Hernandez, guilty of, among other things, possession of
cocaine with intent to distribute. In the pr esentencing
report, the probation officer applied the career offender
provision of U.S.S.G. S 4B1.1 as a r esult of two prior
controlled substance convictions. Hernandez challenged the
use of the convictions as outside the scope of a controlled
substance offense for S 4B1.1 purposes.

The statute that Hernandez was convicted under stated
that " `it is unlawful for any person to sell, purchase,
manufacture, deliver, or possess with the intent to sell a
controlled substance.' " See id. at 1440 (quoting Fla. Stat.
Ann. S 893.13(1)(a) (1993)). Hernandez's 1993 plea of nolo
contendere to both charges did not specify whether his
convictions were for the purchase or the sale of controlled
substances. The difference was significant because a

                               5
conviction for purchasing did not qualify as a controlled
substance offense for S 4B1.1 enhancement purposes, while
a conviction for sale did.

The Eleventh Circuit held that although the District
Judge improperly considered the arr est affidavits in
determining whether the convictions wer e for purchasing or
selling, a sentencing court could look beyond the words of
the statute to determine if an offense qualifies as a
predicate for S 4B1.1 enhancement purposes. On remand, it
instructed the District Court to examine "easily produced
and evaluated court documents, such as any helpful plea
agreements or plea transcripts, any presentencing reports
adopted by the sentencing judges, and any findings made
by the sentencing judges," in order to deter mine whether
the prior convictions qualified as predicate offenses for
enhancement under S 4B1.1. Id.

When considering the classification of a criminal statute
as a controlled substance offense, the sentencing court
should ascertain if the conduct that causes a conviction
under the statute was a controlled substance of fense. See
Williams, 176 F.3d at 717. Put another way, the sentencing
court should ask if a violation of the criminal statute
facilitated "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." U.S.S.G. S 4B1.2(b).
For example, in Williams this Court considered whether a
conviction pursuant to 21 U.S.C. S 843(b) for" `knowingly or
intentionally' " using " `any communication facility in
committing or in causing or facilitating the commission of
any acts constituting a [drug-related] felony' " was properly
classified as a controlled substance of fense. Williams, 176
F.3d at 716 (quoting 21 U.S.C. S 843(b)). This Court ruled
that "where a particular S 843(b) conviction established that
the defendant `committ[ed],' `caus[ed],' or `facilitat[ed]' one
of the acts enumerated in U.S.S.G. S 4B1.2(2), that
conviction qualifies as a `controlled substance offense' for
purposes of determining career of fender status." Id. at 717
(alteration in original).

                               6
The disputed statute of conviction in this case is entitled
"Employing a Juvenile in a Drug Distribution Scheme." The
operative statutory language reads: "Any person being at
least 18 years of age who knowingly uses, solicits, directs,
hires or employs a person 17 years of age or younger to
violate N.J.S. 2C:35-4 or subsection a. of N.J.S. 2C:35-5, is
guilty of a crime of the second degree . . . ." N.J. Stat. Ann.
S 2C:35-6 (West 1995).4 The parties do not dispute that
Shabazz's conviction under S 2C:35-6 was for conduct that
facilitated the distribution of a controlled substance.

However, Shabazz urges us not to conclude our analysis
here. He contends that, although the of fense underlying
S 2C:35-6 may be a controlled substance offense, the
criminal act committed by him was solicitation and
solicitation cannot be considered a contr olled substance
offense. Shabazz points out that in United States v. Dolt, 27
F.3d 235 (11th Cir. 1994), the United States Court of
Appeals for the Eleventh Circuit noted that solicitation was
not among the preliminary and inchoate crimes listed
separately in the Application Notes to the Guidelines as
constituting a controlled substance offense. See id. at 238.
However, the Court continued to explor e the treatment of
solicitation as applied in Florida courts to deter mine
whether it was sufficiently similar to those crimes listed as
controlled substance offenses. See id. Since solicitation is
distinct and generally further removed fr om the facilitated
act, the Court reasoned that it was sufficiently dissimilar to
the preliminary and inchoate crimes listed in the
Guidelines and thus not covered. See id. at 238-40.

If we were to decide that Dolt contr olled this case, we
would be required to determine if Shabazz's conduct
constituted solicitation or one of the other enumerated
offenses in S 2C:35-6. New Jersey criminal law no longer
provides for the separate offense of solicitation. Instead,
solicitation is punishable as a criminal attempt in violation
of N.J. Stat. Ann. S 2C:5-1. See State v. Sunzar, 751 A.2d
627, 631 (N.J. Super. Ct. Law Div. 1999); State v.
_________________________________________________________________

4. The cited statutes within S 2C:35-6 r espectively refer to the illegal
maintenance or operation of a production facility for a controlled
dangerous substance and distribution of a contr olled substance.

                               7
Jovanovic, 416 A.2d 961, 965 (N.J. Super . Ct. 1980). Based
on the Model Penal Code as its conceptual sour ce, see
Jovanovic, 416 A.2d at 631, New Jersey defines solicitation
as " `no more than asking or enticing someone to commit a
crime.' " Sunzar, 751 A.2d at 630 (quoting State v. Gay, 486
P.2d 341, 345 (Wash. Ct. App. 1971)).

In Williams, this Court refused to apply Dolt to
convictions under S 843(b), and left open as well the
question of whether solicitation convictions may be
considered a controlled substance of fense. See Williams,
176 F.3d at 717 n.4. We need not r each that issue in this
case. The New Jersey statute of conviction her e criminalizes
five different acts (i.e., using, soliciting, directing, hiring or
employing) related to exploiting a juvenile in a drug
distribution scheme. Even if we were to find that mere
solicitation of a juvenile does not qualify as a controlled
substance offense, some of the other criminalized acts in
the New Jersey statute clearly do qualify, such as the use,
employment or direction of a juvenile. Because the record
is unclear for which act Shabazz was formerly charged and
the statute criminalizes different acts that may or may not
be controlled substance offenses, we look past the words of
the statute to the "conduct of which the defendant was
convicted." U.S.S.G. S 4B1.2 app. n.2.

Evidence of the conduct underlying Shabazz's violation of
N.J.S. S 2C:35-6 is provided in the pr esentence report and
the state court's opinion denying post conviction r elease.
According to the presentence report, Newark police officers
were conducting surveillance and observed Shabazz and
two others conducting drug sales.5 One of the two other
dealers was a juvenile. The New Jersey court r ecounted the
facts as follows: "[D]efendant acknowledged that he `used
S.G.,' a 17-year old juvenile, `as a lookout' while preparing
to sell a large quantity of cocaine." State v. Shabazz, 622
A.2d 914, 915 (N.J. Super. Ct. App. Div. 1993). This
sufficiently demonstrates that Shabazz was caught past the
point of solicitation and was actually using others,
including a juvenile, to facilitate the distribution of a drug.
_________________________________________________________________

5. It is important to note that Shabazz did not object to the probation
officer's description of his underlying conduct.

                               8
Thus his conduct would be sufficient to qualify as a
controlled substance offense.

* * *

For the foregoing reasons, the judgment of the District
Court is affirmed.

A True Copy:
Teste:

        Clerk of the United States Court of Appeals
        for the Third Circuit

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