                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0124n.06

                                         No. 16-2776

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                              )                      FILED
                                                       )                Mar 12, 2018
     Plaintiff-Appellee,                               )            DEBORAH S. HUNT, Clerk
                                                       )
v.                                                     )
                                                            ON APPEAL FROM THE
                                                       )
                                                            UNITED STATES DISTRICT
DEMOND ANDREW BROWN,                                   )
                                                            COURT FOR THE WESTERN
                                                       )
                                                            DISTRICT OF MICHIGAN
     Defendant-Appellant.                              )
                                                       )
                                                       )
                                                       )
                                                       )


BEFORE: KEITH, KETHLEDGE, and DONALD, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. Appellant Demond Brown pled guilty to one count

of possession with intent to distribute 28 grams or more of cocaine base, in violation of

21 U.S.C. § 841(a) and (b)(1)(B)(iii). Brown appeals the district court’s finding at sentencing

that he qualified as a career offender under United States Sentencing Guidelines § 4B1.1,

because none of his prior sentences at issue exceeded one year. Moreover, Brown contends that

he received ineffective assistance of counsel at sentencing. For the following reasons, we

disagree with both of Brown’s arguments and affirm the district court’s career offender finding

and resulting sentence.

                                  I.      BACKGROUND

       On April 27, 2016, state and federal law enforcement officials obtained a search warrant

for Demond Brown’s (“Brown”) residence. Brown shared this residence with his girlfriend.

                                                
 
No. 16-2776, United States v. Brown


During the search, law enforcement officials discovered approximately 35 grams of cocaine base

in several locations throughout the residence. They also recovered a rifle, a loaded pistol, and

approximately $2,600 in United States currency that was the proceeds of drug trafficking.

Brown admitted that the firearms belonged to him, and that he intended to distribute the cocaine

base to other people.

        On June 29, 2016, a grand jury sitting in the Western District of Michigan returned a

two-count Indictment, charging Brown with: (1) possession with intent to distribute more than

28 grams of cocaine base, in violation of 21 U.S.C. § 841(a) and (b)(1)(B); and, (2) being a felon

in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).             The

Government subsequently filed an Information and Notice of Prior Drug Conviction on July 26,

2016, which increased the resulting penalty to a minimum term of ten years’ incarceration

pursuant to 21 U.S.C. § 841(b)(1)(B). On September 1, 2016, Brown pled guilty to the drug

count (Count One) of the Indictment, pursuant to a written plea agreement. Under the terms of

the plea agreement, the Government agreed to dismiss the firearm count (Count Two) of the

Indictment.

       Prior to sentencing, the United States Probation Office prepared a Presentence

Investigation Report (“PSR”), which determined that Brown was a career offender under United

States Sentencing Guidelines (“U.S.S.G.”) § 4B1.1(a) as a result of two prior drug convictions in

Michigan (hereinafter, “Michigan drug convictions”). The convictions were for delivery or

manufacture of less than 50 grams of cocaine, in violation of Mich. Comp. Laws (“MCL”)

§ 333.7401.    One conviction occurred in 2013, the other in 2014.          The career offender

enhancement added nine points to Brown’s Adjusted Offense Level of 28; after a three point

reduction pursuant to U.S.S.G. § 3E1.1, Brown’s Total Offense Level was 34. Notably, Brown



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No. 16-2776, United States v. Brown


did not object to the PSR, but did file a sentencing memorandum and a motion for a downward

variance.

       At the sentencing hearing on December 13, 2016, Brown’s counsel again requested a

variance, but did not object to the application of the career offender enhancement or any other

aspect of the guideline calculation. The district court found that the career offender enhancement

was applicable to Brown, and that the resulting advisory guideline range was 262-327 months.

Brown’s counsel did not dispute this finding.         After considering the 18 U.S.C. § 3553(a)

sentencing factors and granting Brown’s request for a downward variance, the district court

imposed a below-Guidelines sentence of 240 months. Brown filed a timely notice of appeal on

December 27, 2016.

                                    II.     DISCUSSION

                               A.         Standard of Review

       Generally, we review de novo the district court’s legal determination that Brown’s prior

Michigan drug convictions qualify as controlled substance offenses for career-offender purposes.

See United States v. Evans, 699 F.3d 858, 862 (6th Cir. 2012). Because he raises this objection

for the first time on appeal, however, we review for plain error. United States v. House, 872 F.3d

748, 753 (6th Cir. 2017) (citing United States v. Hickman, 303 F. App’x 279, 281 (6th Cir.

2008)). To demonstrate plain error, Brown must show: “(1) that an error occurred in the district

court; (2) that the error was plain, i.e., obvious or clear; (3) that the error affected defendant’s

substantial rights; and (4) that this adverse impact seriously affected the fairness, integrity, or

public reputation of the judicial proceedings.” United States v. Coppenger, 775 F.3d 799, 803

(6th Cir. 2015) (citing United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc)).




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No. 16-2776, United States v. Brown


        Section 4B1.1(a) of the Sentencing Guidelines states:

        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.

U.S.S.G. § 4B1.1(a). The Sentencing Guidelines define “controlled substance offense” 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.

U.S.S.G. § 4B1.2(b).

        To determine whether a given conviction qualifies as a predicate offense under

§ 4B1.1(a), this court typically employs the “categorical approach.” House, 872 F.3d at 753

(citing Mathis v. United States, 136 S. Ct. 2243, 2248-49 (2016)). However, where the statute of

conviction is “divisible,” meaning that it lists elements in the alternative such that the statute

“comprises multiple, alternative versions of the crime,” this court utilizes the “modified

categorical approach.” Id. (quoting Descamps v. United States, 570 U.S. 254, 261-62 (2013)).

This approach requires sifting through the alternative elements to analyze whether any of them

“matches an element in the generic offense,” and if one does, “consult[ing] a limited class of

documents . . . to determine which alternative formed the basis of the defendant’s prior

conviction.” Id. (quoting Descamps, 570 U.S. at 257); see also Mathis, 136 S. Ct. at 2248-49.




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No. 16-2776, United States v. Brown


                                         B.      Analysis


       1. The Michigan Drug Convictions Qualify as Predicate Offenses Under U.S.S.G. §
          4B1.1(a)

       On appeal, Brown’s primary contention is that the aforementioned Michigan drug

convictions do not qualify as sufficient predicate offenses to trigger the career offender

enhancement under U.S.S.G. § 4B1.1(a) because he was not sentenced to a period of

imprisonment exceeding one year for either offense, and therefore, the offenses are not

“controlled substance offenses” as defined by U.S.S.G. § 4B1.2(b). This argument is unavailing.

       As a preliminary matter, Brown conceded in his sentencing memorandum that he is a

career offender. Consequently, Brown has waived his right to challenge that finding on appeal.

See United States v. McBride, 826 F.3d 293, 294-95 (6th Cir. 2016) (“A defendant waives the

argument that a sentencing enhancement does not apply by ‘explicitly agreeing’ that it does . . .

.” (citation omitted)). For this reason, the district court did not plainly err in finding that Brown

is a career offender under § 4B1.1(a).

       In any event, even if Brown had challenged this finding before the district court, he

would have not succeeded. Brown’s two Michigan drug convictions at issue are for delivery or

manufacture of less than 50 grams of a controlled substance, in violation of Mich. Comp. Laws

§ 333.7401. Violation of this statute is a felony “punishable by imprisonment for not more

than 20 years or a fine of not more than $25,000.00 or both.”                 Mich. Comp. Laws

§ 333.7401(2)(a)(iv). This court has previously held–on multiple occasions after conducting a

modified-categorical approach analysis–that a conviction for violating the aforementioned

Michigan statute qualifies as a predicate offense under U.S.S.G. § 4B1.1(a).            See House,

872 F.3d at 753-54; United States v. Tibbs, 685 F. App’x 456, 462-64 (6th Cir. 2017).



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No. 16-2776, United States v. Brown


Accordingly, the district court did not err in finding that Brown’s Michigan drug convictions

were a sufficient trigger for the career-offender classification pursuant to U.S.S.G. § 4B1.1(a).

             To the extent that Brown argues that the Michigan drug convictions do not qualify as

felony predicate offenses because he was not sentenced to a period of imprisonment for either

offense, this argument misses the mark.1 U.S.S.G. § 4B1.2 defines “prior felony conviction” as

“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.” U.S.S.G. § 4B1.2 comment. (n.1.)

(emphasis added); see also United States v. Solomon, 592 F. App’x 359, 361 (6th Cir. 2014)

(holding that a defendant’s prior felony conviction counted for purposes of the Sentencing

Guidelines because it was punishable by imprisonment exceeding one year). Under Michigan

law, both of Brown’s Michigan drug convictions are expressly designated felonies and are

punishable by up to twenty years’ imprisonment. Mich. Comp. Laws § 333.7401(2)(a)(iv).

Accordingly, we hold that the district court did not err in finding that Brown’s Michigan drug

convictions were felonies for the purposes of U.S.S.G. § 4B1.2.

             Brown further contends that the Michigan drug convictions should not have scored any

criminal history points, rendering them ineligible for career offender scoring purposes. Brown

again relies on the notion that he did not serve a period of incarceration for these offenses. As an

initial, factual matter, we have already noted that Brown’s convictions at issue resulted in

incarceration. Furthermore, as a legal matter, Brown’s argument is inapposite.


                                                       
1
  This argument is also factually incorrect, as Brown served periods of imprisonment as a result of both convictions.
For the 2013 conviction, Brown was initially sentenced to six months in jail, with credit for 16 days served and the
remainder suspended. Brown later received additional sentences of 5 days and 30 days, as wells as two consecutive
weekends, for violating the terms of his probation. With respect to the 2014 conviction, Brown received a
suspended sentence of one year; he later received additional sentences of 5 days and 30 days, and two consecutive
weekends for this conviction as well, as a result of violating the terms of his probation.

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No. 16-2776, United States v. Brown


        A prior conviction cannot serve as a career offender predicate if the conviction does not

score at least one criminal history point. U.S.S.G. § 4B1.2(c). In order for prior convictions to

count, the prior convictions must be “counted separately under the provisions of § 4A1.1(a), (b),

or (c).” Id. Under U.S.S.G. § 4A1.1, criminal history points are tallied as follows:

            (a) Add 3 points for each prior sentence of imprisonment exceeding one
                year and one month.
            (b) Add 2 points for each prior sentence of imprisonment of at least sixty
                days not counted in (a).
            (c) Add 1 point for each prior sentence not counted in (a) or (b), up to a
                total of 4 points for this subsection.

U.S.S.G. § 4A1.1. Notably, “[a] conviction for which the imposition or execution of sentence

was totally suspended or stayed shall be counted as a prior sentence.” U.S.S.G. § 4A1.2(a)(3).

Consequently, in the instant matter, Brown’s Michigan drug convictions each warranted a

criminal history point and were therefore properly scored under U.S.S.G. § 4A1.1(c).

        Lastly, Brown maintains that the district court erred by relying on the PSR to determine

whether Brown’s Michigan drug convictions are adequate predicate offenses for the career

offender enhancement. Brown contends that the only evidence in the record is the PSR’s

reliance upon a state court PSR, which cannot properly be utilized for a sentence enhancement

under Shepard v. United States, 544 U.S. 13 (2005), and United States v. King, 853 F.3d 267 (6th

Cir. 2017). In Shepard, the Supreme Court held that “where a prior conviction for violating a

statute with alternative elements was the result of a plea, a court answering the [Armed Career

Criminal Act] predicate question could attempt to identify the element underlying the conviction

by consulting the plea-colloquy transcript, the written plea agreement, or ‘a record of comparable

findings of fact adopted by the defendant upon entering the plea.’” King, 853 F.3d at 272

(quoting Shepard, 544 U.S. at 20). Although Brown’s argument is not entirely without merit, it

still falls short of succeeding.

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No. 16-2776, United States v. Brown


       This court has held that “[b]y failing to object to the presentence report, [a defendant]

accept[s] all of the factual allegations contained in it.” Vonner, 516 F.3d at 385. Moreover, “a

district court may rely on unchallenged PSR findings to establish the existence of prior

convictions.” United States v. Hockenberry, 730 F.3d 645, 666 (6th Cir. 2013) (emphasis

omitted) (citing United States v. Birdsong, 330 F. App’x 573, 586 (6th Cir. 2009) (holding that a

district court did not err in relying on a PSR when the defendant did not explicitly challenge “the

correctness of any particular conviction identified in the report”)). At the same time, this court

has also determined that a district court could not rely on a factual description within a PSR to

establish the specific nature of a defendant’s conviction, even when the defendant failed to object

to the PSR. See United States v. Wynn, 579 F.3d 567, 576-77 (6th Cir. 2009).

       Notwithstanding, we find the instant matter analogous to the circumstances found in

Hockenberry. In Hockenberry, this court found that the district court did not plainly err in

finding sufficient proof for one of the defendant’s prior convictions in reaching an Armed Career

Criminal Act determination. 730 F.3d at 667. There, the district court relied on the PSR

prepared for the defendant, which found that the defendant had numerous prior convictions, none

of which the defendant challenged prior to sentencing. Id. Just as Brown conceded the existence

of the Michigan drug convictions in his sentencing memorandum, the defendant in Hockenberry

also conceded that he had been convicted of the prior offenses. Id. This court found that the

district court in Hockenberry had a sufficient basis to find the existence of the predicate offense,

id., and we do the same here.

       The matter currently before the court is also analogous to the circumstances found in

United States v. Thomas, 13 F. App’x 233 (6th Cir. 2001). In Thomas, this court held that a

district court did not plainly err by relying on (1) notice of a defendant’s prior convictions filed



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No. 16-2776, United States v. Brown


by the government and (2) a PSR discussing those prior convictions, to find that the defendant’s

prior convictions triggered the Armed Career Criminal Act’s sentencing enhancement. Id. at

241-43. The defendant in Thomas did not object to the existence of the prior convictions as

delineated in the government’s notice, or in the PSR. Id. at 241. Here, as in Thomas, the

government filed a notice of Brown’s prior convictions at issue. Brown failed to object to the

information regarding the Michigan drug convictions found in the government’s notice, just as

he failed to object to the PSR’s depiction of the same facts. Under this court’s rationale in

Hockenberry and Thomas, it was not plain error for the district court to rely on the government’s

notice and the PSR to find that Brown’s criminal history contained two career-offender predicate

convictions.

       Moreover, we find Brown’s reliance on King to be misplaced because King addressed the

issue of a district court’s reliance on Shepard documents within the context of determining

whether prior offenses were “committed on occasions different from one another” within the

meaning of the Armed Career Criminal Act. King, 853 F.3d at 268-69. Whether Brown’s prior

offenses were committed on different occasions is far from the dispositive, or even relevant,

question here. Consequently, we hold that the district court did not plainly err in relying on the

PSR to determine that Brown’s Michigan drug convictions were predicate offenses for career-

offender classification under U.S.S.G. § 4B1.1(a).

       2. Brown’s Trial Counsel Was Not Constitutionally Ineffective

       Brown further asserts that his trial counsel was constitutionally ineffective for failing to

challenge the career offender calculation. This argument is unavailing. This court generally

refrains from addressing ineffective assistance of counsel claims on direct appeal, except in rare

cases where “the record is adequate to assess the merits of defendant’s allegations.” United



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No. 16-2776, United States v. Brown


States v. Southers, 866 F.3d 364, 371 (6th Cir. 2017) (quoting United States v. Bradley, 400 F.3d

459, 462 (6th Cir. 2005)). Here, we find that the record in this matter is sufficient for review of

Brown’s ineffective assistance of counsel claim.

       To succeed on an ineffective assistance of counsel claim, Brown must demonstrate that

his trial “counsel’s performance (1) ‘fell below an objective standard of reasonableness’ and

(2) was prejudicial, i.e., ‘but for counsel’s unprofessional errors, the result of the proceeding

would have been different.’” United States v. Franklin, 415 F.3d 537, 556 (6th Cir. 2005)

(quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). For the reasons discussed

above, Brown was properly sentenced as a career offender.            Brown clearly met all three

conditions necessary to be sentenced as a career offender pursuant to U.S.S.G. § 4B1.1(a).

Therefore, any objections to the career offender calculation would have been without merit. See

United States v. Martin, 45 F. App’x 378, 381-82 (6th Cir. 2002) (“Failure of trial counsel to

raise wholly meritless claims cannot be ineffective assistance of counsel.” (citing Strickland,

466 U.S. at 686-87)).

       Furthermore, Brown’s trial counsel successfully secured a sentencing variance, which

resulted in a sentence 22 months below the low-end of the applicable Guidelines range.

Accordingly, Brown cannot establish either constitutionally deficient performance or actual

prejudice under Strickland, and his claim for ineffective assistance of counsel must fail.

                                     III.    CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s sentence in this matter.




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