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United States v. Bowling

United States District Court, E.D. Kentucky, Southern Division, London

October 3, 2018



          Robert E. Wier United States District Judge

         The Court has thoroughly considered whether Defendant April Bowling's previous Kentucky conviction for theft of a prescription blank is a prior “felony drug offense” triggering the twenty-year mandatory minimum sentence outlined in 21 U.S.C. § 841(b)(1)(A). The United States provided Bowling the required pre-plea notice of its intent to pursue the enhancement under § 851(a), based on her prior conviction under KRS § 218A.286(1). The statute of conviction provides: “A person is guilty of theft of a prescription blank when he unlawfully takes or exercises control over a prescription blank belonging to another.” KRS § 218A.286(1). A “felony drug offense” is one “that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.” 21 U.S.C. § 802(44). Does the prescription blank theft count for Title 21 enhancement?[1]

         The Court and parties focused on whether this question turns on a categorical or conduct-specific analysis. The circuits have somewhat diverged in their analyses of qualifying offenses under § 802(44). Most recently, the Seventh Circuit considered whether a defendant's prior Arizona dangerous drug conviction was a felony drug offense. Informed by the Supreme Court's decisions in Mathis, Descamps, and Taylor, [2] the court employed the categorical approach and concluded that the prior conviction failed to qualify under § 802(44). United States v. Elder, 900 F.3d 491, 501-02 (7th Cir. 2018). The categorical approach “compar[es] the state statute of conviction to the federal statute in question and ask[s] whether the two statutes are a categorical match.” Id. at 498 (citing Mathis, 136 S.Ct. at 2248). The Seventh Circuit joined the First, Fourth, and Ninth Circuits[3] in embracing this analytical tool to assess whether a prior conviction qualifies as a felony drug offense.

         Alternatively, a court that declines to view § 802(44) categorically “looks to ‘the specific way in which an offender committed the crime on a specific occasion' to determine whether the prior conviction qualifies as a predicate offense under the federal statute at issue.” Id. (quoting, by way of example, Nijhawan v. Holder, 129 S.Ct. 2294, 2288 (2009)). Here, the parties agree that if the Court employs a circumstance-specific approach, there is an adequate basis for applying the enhancement. The record reveals that Bowling attempted to use the stolen prescription pad to secure opiates. See, e.g., DE #135-1 at 7.

         Without comprehensive analysis of the issue, the Sixth Circuit has indicated in an unpublished opinion that it (1) construes § 802(44) broadly and (2) eschews the categorical approach: “[T]his court does not employ a categorical approach to determining whether a prior conviction constitutes a ‘felony drug offense' for purposes of section 841(b)(1). Even if we did, section 802(44) defines ‘felony drug offense' broadly to encompass any offense that ‘prohibits or restricts conduct relating to narcotic drugs[.]'” United States v. Soto, 8 Fed.Appx. 535, 540 (6th Cir. 2001) (unpublished).[4] Of course, the Sixth Circuit decided Soto over a decade prior to Mathis or Descamps and has not revisited the issue since. Whether it would reach the same decision in light of intervening Supreme Court case law, and the trend initiated by the First, Fourth, Seventh, and Ninth Circuits, is certainly an open question.

         Mathis emphasizes three key factors relevant to applying the categorical approach in the context of a federal recidivism statute: (1) the text of the statute at issue; (2) any “Sixth Amendment concerns that would arise from sentencing courts' making findings of fact that properly belong to juries[;]” and (3) the practicality or unfairness of applying a circumstance-specific approach. Elder, 900 F.3d at 498 (quoting Descamps, 133 S.Ct. at 2280).

         The language of § 802(44) directs courts to evaluate the law underlying the prior conviction, to determine whether it prohibits or restricts conduct “relating to” (in a broad sense) the substances listed. A textual approach strongly suggests categorical analysis. Like the Armed Career Criminal Act (ACCA) at issue in Mathis, § 802(44) lacks reference to underlying specific conduct or behavior; rather, the focus is on the fact of a prior conviction bearing qualifying criteria.[5] Here, even more convincingly, the cornerstone of § 802(44)'s application is assessment of the statute of conviction itself and whether that law regulates behavior relating to the listed drugs.

         Further, delving into aspects of an offense that are not required as a conviction basis surely risks Sixth Amendment problems. As Mathis made clear, in the recidivism context, the fact of conviction (and the underlying required offense elements) properly trigger enhancement. See 136 S.Ct. at 2246 (“to allow a sentencing judge to go any further [than an elements-only inquiry] would raise serious Sixth Amendment concerns because only a jury, not a judge, may find facts that increase the maximum penalty”); see also Alleyne v. United States, 133 S.Ct. 2151, 2158 (2013) (“The touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an ‘element' or ‘ingredient' of the charged offense.”). Judge-found recidivism facts pertaining to crime details threaten to cross the Alleyne line.

         Finally, while the record here is clear enough, generally allowing evaluation of details about a crime not qualifying as crime elements could introduce unfairness. Thus, as the Seventh Circuit reasoned, the categorical approach avoids this “because its focus on elements, rather than extraneous facts, means that any ‘inaccuracies' in the record documents do ‘not come back to haunt the defendant many years down the road by triggering a lengthy mandatory sentence.'” Id. at 500 (quoting Mathis, 136 S.Ct. at 2253).

         The Court is dubious that Soto would reach the same result today, given the clarifications by Descamps and Mathis, and the clear circuit trend. Yet, Soto (albeit unpublished) is a circuit decision, and other Sixth Circuit cases (like Grayson) in no way engaged in categorical analysis. Although the Court predicts Mathis would alter the outcome, given Soto, it declines to go that far. In part-as the proceeding discussion explains-this is because the Court views Bowling's conviction as qualifying under either theory.

         Here, the statute of conviction really involves the commission of one crime-theft of a prescription blank. The simple question, then, is whether this felony conviction is one under a statute that “prohibits or restricts conduct relating to” the drug groups listed in § 802(44). The completed crime is theft of the blank. The term “prescription blank” has a defined meaning in this Chapter of the KRS, a Chapter wholly dedicated to “controlled substances.” See KRS § 218A.005(1) (noting that the purpose of the Chapter is “[t]he regulation of controlled substances in this Commonwealth”).

         Under the Chapter, “‘Prescription blank,' with reference to a controlled substance, means a document that meets the requirements of KRS 218A.204 and 217.216.” KRS § 218A.010(42). Those cross-cited statutes specify the requirements under Kentucky law for prescriptions. The § 217.216 requisites apply to prescriptions generally, but § 218A.204, from the controlled substances statute, expressly authorizes regulations defining “security requirements for all prescriptions written by practitioners.” The ensuing regulation created the distinct “security prescription blank, ” which is the type of written prescription (featuring mandated security features to prevent abuse) required of practitioners prescribing controlled substances in the Commonwealth. See 902 KAR 55:105 § 2(2). This is the particular “prescription blank, ” relative to a controlled substance that Chapter 218A contemplates. Thus, a “prescription blank” within KRS Chapter 218A is a discrete kind of printed form, one mandated for use in the prescribing of controlled substances.[6]

         In sum, Chapter 218A, by definition, is one addressing controlled substances. The creation of a security prescription blank as a requirement for prescribing practitioners serves to regulate controlled substances; a prohibition against theft of such a blank is plainly one targeting the dangers and problems associated with drug diversion. The remaining parts of KRS § 218A.286 enumerate related hazards. See, e.g., KRS § 218A.286(2) and (3) (prohibiting criminal possession and trafficking of prescription blanks, respectively). Surely, given the Sixth Circuit's broad reading of the “relating to” element of § 802(44), the law at issue-criminalizing theft of a specific type of prescription blank, particular to controlled substances-is one that “prohibits or restricts conduct relating to” prescription controlled substances.

         The only potential issue is whether the scope of KRS § 218A.286 mirrors the scope of § 802(44) in terms of the enumerated substances. The parties did not suggest any prescription controlled substance that would fall outside the broad umbrella of § 802(44), and the Court's independent review has found none. On this record, the drugs listed in § 802(44) blanket the scope of prescription controlled substances under Kentucky law. As such, a conviction for theft of a prescription blank is a felony ...

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