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United States v. Balenti

United States District Court, D. Utah

June 1, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL RICHARD BALENTI, Defendant.

          MEMORANDUM DECISION AND ORDER RE: CAREER OFFENDER

          Ted Stewart United States District Judge

         Defendant Michael Richard Balenti is scheduled to be sentenced on June 5, 2017. Defendant objects to his classification as a career offender, among other things. For the reasons discussed below, the Court finds that Defendant is a career offender.

         I. BACKGROUND

         Defendant was charged by Felony Information with possession of methamphetamine with intent to distribute and possession of heroin with intent to distribute. Defendant pleaded guilty to possession of methamphetamine with intent to distribute on October 24, 2016. Sentencing is set for June 5, 2017.

         The Presentence Report indicates that Defendant has a base offense level of 30 with a criminal history category of IV. However, the Presentence Report concludes that Defendant qualifies as a career offender, which raises his base offense level to a 34 and increases his criminal history category to a VI. With an adjustment for acceptance of responsibility, Defendant faces a guideline range of 188 to 235 months. Defendant challenges his classification as a career offender.

         II. DISCUSSION

         United States Sentencing Guideline (“USSG”) § 4B1.1(a) 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.

         In this case, Defendant was at least eighteen years old at the time he committed the instant offense and the instant offense is a felony controlled substance offense. Thus, the question becomes whether he has at least two prior felony convictions for either a crime of violence or a controlled substance offense. The government contends that Defendant has at least two prior felony convictions of a controlled substance offense.

         Under the Guidelines, a controlled substance offense

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.[1]
The term “two prior felony convictions”
means (1) the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense (i.e., two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense), and (2) the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of §4A1.1(a), (b), or (c).[2]

         Defendant has three convictions for possession of a controlled substance for sale in violation of California Health and Safety Code § 11378 and two convictions for violations of California Health and Safety Code § 11379, which prohibits the sale or transportation of a controlled substance. The Court must determine whether these prior convictions support a finding that Defendant is a career offender.

         To determine whether Defendant's prior convictions qualify as controlled substance offenses, the Court generally applies the “categorical approach, ” which looks only at the elements of the statute under which the defendant was convicted.[3] At times, however, the Court may apply the “modified categorical approach, ” which allows the Court to look at certain documents to determine Defendant's crime of conviction.[4] The modified categorical approach applies only when the statute is “divisible, ” meaning when it “lists multiple, alternative elements, and so effectively creates several different crimes.”[5]

         Defendant first argues that his convictions under §§ 11378 and 11379 are not categorically controlled substance offenses because they include substances that are not included in the federal controlled substance schedules. The Court agrees that these provisions are not categorically controlled substance ...


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