                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 18a0110n.06

                                           No. 17-5301


                          UNITED STATES COURT OF APPEALS                                FILED
                               FOR THE SIXTH CIRCUIT                              Mar 02, 2018
                                                                              DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )      ON APPEAL FROM THE
v.                                                       )      UNITED STATES DISTRICT
                                                         )      COURT FOR THE EASTERN
BROC KALON WHITFIELD,                                    )      DISTRICT OF KENTUCKY
                                                         )
       Defendant-Appellant.                              )                  OPINION
                                                         )
                                                         )



       BEFORE:        GILMAN, ROGERS, and STRANCH, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. Broc Kalon Whitfield pled guilty to a single

count of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1). The district court

sentenced Whitfield as a career offender under the United States Sentencing Guidelines (USSG)

§ 4B1.1(b) based on two prior controlled substances convictions and imposed a sentence of 198

months of imprisonment followed by an eight-year term of supervised release. Whitfield appeals

his sentence, arguing that his designation as a career offender violates the Fourteenth

Amendment’s due process and equal protection provisions. We AFFIRM.

                                  I.       BACKGROUND

       Between April 21 and June 24, 2016, confidential informants acting on behalf of the

Kentucky State Police purchased a total of 85.822 grams of crack cocaine from Whitfield. In

total, six controlled buys occurred, and the largest single transaction involved just over an ounce
No. 17-5301
United States v. Whitfield

of crack cocaine.1 As a result of these transactions, Whitfield was indicted on September 1,

2016, and charged with two counts of distributing crack cocaine, in violation of 21 U.S.C.

§ 841(a)(1). Prior to sentencing, Whitfield submitted a pro se motion requesting the district

court “to consider a 1 to 1 crack to powder ratio.” In addition to Whitfield’s pro se motion,

defense counsel prepared a sentencing memorandum reiterating Whitfield’s arguments regarding

the crack-to-powder cocaine disparities and arguing that the relatively small quantities of drugs

involved in both the instant case and Whitfield’s prior offenses merited a downward variance.

        At the sentencing hearing, Whitfield personally addressed the district court at length,

requesting the court to “waiver[ ] against applying the 4B1 career criminal enhancement or

depart downward for the category VI, final offense level 34.”                   Whitfield emphasized the

relatively small quantities of drugs involved in his offenses and implored the court to determine

that these circumstances warranted a downward departure. Defense counsel reiterated that the

drug transactions Whitfield had conducted involved small quantities and added that Whitfield

had a stable work history and sold drugs to pay for legal assistance in his battle to obtain

custody of his daughter and remove her from a dangerous situation.

        The district court concluded that Whitfield was a career offender based on two prior

felony controlled substance offenses. In May 2011, Whitfield was found guilty of trafficking an

unspecified controlled substance in the second degree, in violation of Kentucky Revised Statutes

(Ky. Rev. Stat.) § 218A.1413, and sentenced to thirty months in prison. In January 2014,

Whitfield was sentenced to five years of imprisonment for trafficking cocaine in the first degree,

in violation of Ky. Rev. Stat. § 218A.1412. Id. Based on a total offense level of 34 and a

criminal history category of VI, Whitfield’s advisory Guidelines range was 262 to 327 months of
1
 The transactions included: 3.428 grams sold on April 16, 2016; 2.211 grams sold on April 22, 2016; 3.304 grams
sold on May 4, 2016; 3.87 grams sold on May 9, 2016; 6.424 grams sold on June 9, 2016; 31.831 grams sold on
June 22, 2016; and 34.754 grams sold on June 24, 2016.

                                                     -2-
No. 17-5301
United States v. Whitfield

imprisonment. The district court applied a downward variance and imposed a sentence of 198

months of imprisonment. Whitfield filed this timely appeal of his sentence.

                                     II.       ANALYSIS

   A. Standard of Review

          Whitfield raises constitutional due process and equal protection challenges to his

sentence. “While constitutional challenges are typically reviewed de novo, when the argument

was not raised at the district court[,] ‘Sixth Circuit precedent requires application of the plain

error standard.’” United States v. Dedman, 527 F.3d 577, 591 (6th Cir. 2008) (quoting United

States v. Barton, 455 F.3d 649, 652 (6th Cir. 2006)). Whitfield argues that by raising a pro se

general objection to his career offender designation, his constitutional challenges to his sentence

were adequately preserved, warranting de novo review.           Even under the liberal pleading

standards afforded pro se litigants, Whitfield’s constitutional challenges to his sentence and

designation as a career offender were not sufficiently raised before the district court. See United

States v. Houston, 792 F.3d 663, 666–67 (6th Cir. 2015) (requiring adequate specificity to

objections from pro se litigants). Therefore, we review Whitfield’s argument that his sentence

violates constitutional due process and equal protection requirements for plain error.

          Under plain-error review, “the burden is on the defendant to show (1) [an] error that

(2) was plain, (3) affected defendant’s substantial rights, and (4) seriously affected the fairness,

integrity, or public reputation of the judicial proceedings.” United States v. Ushery, 785 F.3d

210, 218 (6th Cir. 2015) (citing United States v. McCreary-Redd, 475 F.3d 718, 721 (6th Cir.

2007)).




                                                -3-
No. 17-5301
United States v. Whitfield

    B. Constitutional Challenges

        The gravamen of Whitfield’s argument is that because his prior conviction for trafficking

an unspecified amount of an unspecified substance would not constitute a § 4B1.1(b) qualifying

conviction in certain other states, his designation as a career offender violates the Constitution’s

equal protection and due process provisions. Whitfield reasons that had the identical trafficking

activity that led to his 2011 Kentucky conviction occurred across the state line in Ohio, the Ohio

drug offender would not have been convicted of a career criminal predicate offense. This is so

because in some states, such as Ohio, trafficking of smaller amounts of cocaine does not

constitute a felony offense carrying a term of imprisonment in excess of one year.2 Therefore, a

similarly situated Ohio defendant would not qualify as a career criminal, whereas Whitfield does,

despite engaging in identical conduct.

        At the outset, we must clarify that Whitfield’s argument invoking the Fourteenth

Amendment’s due process and equal protection guarantees is instead properly grounded in the

Fifth Amendment, which is “applicable to the federal government.” United States v. Baker, 197

F.3d 211, 215 n.1 (6th Cir. 1999). Although the Fifth Amendment “does not explicitly guarantee

equal protection of the laws[,] . . . the United States Supreme Court has found that the Due

Process Clause of the Fifth Amendment encompasses an equal protection guarantee.” Id. (citing

Bolling v. Sharpe, 347 U.S. 497, 499 (1954)).

        We have previously addressed Whitfield’s argument, albeit in an unpublished opinion.

See United States v. Smith, 681 F. App’x 483 (6th Cir. 2017). Smith held that “[t]he fact that

different states punish the possession of a certain amount of a controlled substance differently,

thus making the same conduct a predicate for a career-criminal enhancement for some

2
  In Ohio, trafficking less than ten grams of cocaine is a fourth degree felony. Ohio Rev. Code § 2925.03(4)(c).
Pursuant to Ohio Rev. Code § 2929.13, non-violent first offenders convicted of fourth degree felonies shall be
sentenced to community corrections rather than imprisonment.

                                                      -4-
No. 17-5301
United States v. Whitfield

defendants but not for others, does not give rise to a constitutional challenge to the Guidelines.”

Id. at 490 (citing United States v. Kubosh, 63 F.3d 404, 407 (5th Cir. 1995), vacated on other

grounds).

       The reasoning in Smith is persuasive. Under our federal system, “the States possess

primary authority for defining and enforcing the criminal law.” United States v. Lopez, 514 U.S.

549, 561 n.3 (1995). In crafting the federal sentencing Guidelines and substantive federal

criminal laws, Congress was well aware of the significant variations that existed in state criminal

law. See Kubosh, 63 F.3d at 407 (“Congress was well aware that different states classify similar

crimes differently. Congress’ deference to the states in this matter is not irrational.”).

       Whitfield has also failed to articulate how the decision of Congress to rely on the

definitions of criminal conduct in the various states to determine career offender designations

implicates a suspect class or a fundamental right. We thus examine Whitfield’s equal protection

argument under rational-basis review. Baker, 197 F.3d at 216. This level of review “is highly

deferential to Congress’s judgment in enacting a particular statute. To survive rational basis

review, a statute need only be rationally related to a legitimate governmental interest.” Id.

Reliance on the states’ definitions of criminal conduct is deeply rooted in our federal system, in

which “[t]he States possess primary authority for defining and enforcing the criminal law.”

Brecht v. Abrahamson, 507 U.S. 619, 635 (1993) (internal quotation marks and citations

omitted). Congressional deference to state definitions of criminal conduct, moreover, promotes

comity and principles of federalism. Whitfield has failed to carry his burden of demonstrating

that Congress’s deference to state definitions of criminal conduct bears no rational relationship to

a legitimate government interest. His due process and equal protection arguments are therefore

unavailing.


                                                  -5-
No. 17-5301
United States v. Whitfield

    C. Vagueness

          Whitfield’s contention that his case raises an issue of “absolute vagueness” fares no

better.    Whitfield argues that because one of his predicate offense convictions involves a

conviction that on its face neither specifies the quantity nor the controlled substance that was

trafficked, “one cannot really discern whether the offense involved a banned, controlled

substance in any jurisdiction, but for the fact that the only information in the notice of intent to

enhance and the [Presentence Investigative Report (PSR)] simply says so.”

          The appropriate time to object to the factual basis of a PSR is before the district court,

prior to sentencing, which Whitfield failed to do. A “[d]efendant’s failure to raise any sort of

challenge in the proceedings below operates as an admission as to the drug types and quantities

set forth in the [PSR], and thereby provides the requisite factual basis to sustain” a defendant’s

conviction. United States v. Stafford, 258 F.3d 465, 476 (6th Cir. 2001). Under Federal Rule of

Criminal Procedure 32, the district court “may accept any undisputed portion of the presentence

report as a finding of fact.” Fed. R. Crim. P. 32(i)(3)(A). The district court’s obligation to make

factual findings under the preponderance of the evidence standard is triggered only when the

content of the PSR is disputed. Fed. R. Crim. P. 32(i)(3)(B); United States v. White, 492 F.3d

380, 415 (6th Cir. 2007) (“As a threshold matter, the defendant must actively raise the dispute

during the sentencing hearing before the district court’s duty to find facts arises.”). Because

Whitfield did not object to the PSR below, this obligation was not triggered, and the court

reasonably relied on the PSR.

          Whitfield urges that his case is similar to United States v. Hernandez, 145 F.3d 1433

(11th Cir. 1998), in which the statute of conviction encompassed both purchase and sale of a

controlled substance, only the latter of which constitutes a controlled substance offense under the


                                                 -6-
No. 17-5301
United States v. Whitfield

Guidelines. The Eleventh Circuit reversed the district court because the latter utilized the arrest

affidavits rather than conviction documents such as the plea agreement and plea transcripts to

evaluate the defendant’s conduct. Id. at 1440. Hernandez is distinguishable from this case

because Whitfield’s PSR unambiguously makes references to the transcript of the sentencing

proceedings to determine that Whitfield pled guilty to trafficking a Schedule II substance. In

short, the district court did not err in determining that Whitfield’s prior crimes constituted career

offender predicate offenses.

       Whitfield was a small-time drug dealer. The largest single transaction underlying his

conviction was barely more than an ounce of crack cocaine. We cannot conclude, however, that

Whitfield’s criminal record did not qualify him as a career offender as a matter of law.

                                  III.       CONCLUSION

       For the reasons stated above, we AFFIRM.




                                                -7-
