103 F.4th 917
2d Cir.2024Background
- Brandon Washington pled guilty to possession with intent to distribute cocaine base, violating 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).
- At sentencing, the district court added one point to Washington's criminal history under the Sentencing Guidelines for a prior New York misdemeanor harassment conviction.
- The harassment conviction stemmed from conduct involving the sale of controlled substances at the same location as the federal offense.
- Washington appealed, arguing the harassment conviction should have been excluded under Guidelines section 4A1.2(c)(1), which generally omits certain minor offenses from the criminal history calculation.
- The Second Circuit affirmed the district court, finding the prior harassment conviction was "similar to" the instant offense and thus properly included under section 4A1.2(c)(1)(B).
- Judge Merriam dissented, arguing reliance on unproven facts in the PSR to enhance Washington's sentence violated the categorical approach and raised Sixth Amendment concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the prior harassment conviction should count in Washington’s criminal history under the Guidelines | Washington: Harassment is “similar to” disorderly conduct and should be excluded; the district court improperly relied on unproven facts | USA: The prior harassment conviction was “similar to” the instant drug offense due to the underlying conduct, so it must be counted per 4A1.2(c)(1)(B) | The prior offense was “similar to” the instant offense; the point properly included |
| Whether the district court erred by relying on facts in the PSR/police records (not Shepard-approved materials) for Guidelines enhancement | Washington: Use of PSR/police records for factfinding on prior conviction is improper and undermines Sixth Amendment rights | USA: The Guidelines provision does not require the categorical approach; court may consider actual conduct as relevant to "similarity" | Court may consider actual conduct; categorical approach not required here |
| Whether other criminal history points (juvenile disorderly conduct/extra points for misdemeanors/probation status) were misapplied | Washington: Points for disorderly conduct and others were wrongly imposed | USA: District court did not count the disorderly conduct convictions, and record supports points for other offenses and committing offense while on probation | No error—district court properly calculated criminal history |
| Dissent: Whether increasing the Guidelines range using unproven facts to compare prior and instant offenses is permissible | Washington: Only elements/statute of conviction (not unproven conduct) should matter under the categorical approach; enhancement on unproven facts violates rights | USA: The Guidelines’ text allows consideration of actual conduct for similarity; no constitutional bar exists in an advisory Guidelines system | Dissent unpersuasive; majority extends precedent to allow conduct-based inquiry |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (establishing the categorical approach for using prior convictions as sentence enhancers)
- Shepard v. United States, 544 U.S. 13 (limiting sentencing courts to use only certain materials concerning prior convictions)
- Descamps v. United States, 570 U.S. 254 (reaffirming limitations on factfinding regarding prior convictions)
- United States v. Booker, 543 U.S. 220 (holding the Guidelines are advisory and discussing the Sixth Amendment)
- United States v. DeJesus-Concepcion, 607 F.3d 303 (interpreting "similar to" language in the Guidelines to allow conduct-based analysis)
- United States v. Morales, 239 F.3d 113 (articulating a multifactor approach to the "similar to" standard for minor offenses in Guideline calculations)
- United States v. Martinez-Santos, 184 F.3d 196 (defining a multifactor approach for "similarity" determinations in the criminal history context)
- United States v. Jones, 878 F.3d 10 (applying categorical approach in Guidelines enhancements)