United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE, UNITED STATES DISTRICT JUDGE
sentencing, Defendant Roy West objected to the determination
of his criminal history points in his presentence report.
After taking the matter under advisement, the Court now
overrules that objection. In this specific case, though Mr.
West was trading one drug for another, the two drug
convictions are severable into separate convictions, and
therefore, should not be counted as relevant conduct for
purposes of calculating his criminal history category.
Roy West was indicted in June 2016 for conspiracy to
distribute methamphetamine. [R. 1.] Several months later, Mr.
West entered a guilty plea to the same. [R. 61; R. 62.] He
was sentenced by this Court on October 31, 2017, to
eighty-seven months of imprisonment. [R. 108; R. 114.] In his
presentence report, the United States Probation Office (USPO)
applied three criminal history points for a state trafficking
offense involving oxycodone. [R. 120 at 13.]
West objected to these points. According to him, he was
trading oxycodone pills for methamphetamine. [R. 124 at 5.]
After his arrest, the United States indicted him only as to
the methamphetamine while the Commonwealth of Kentucky
indicted him only as to the oxycodone. Id. Kentucky
sentenced Mr. West to seven years in prison, concurrent to
the pending federal charges. [R. 120 at 13.] During
sentencing, the Court overruled the objections, but
referenced the incorrect United States Sentencing Guideline.
[R. 144.] On appeal to the Sixth Circuit, the sentence was
vacated. Id. The Court rescheduled sentencing for
June 2019, and reheard arguments from both Mr. West
concerning this objection. [R. 162.] At the hearing, the
Court took the objections under advisement and addresses them
to United States Sentencing Guideline § 4A1.1(a), the
USPO included three points because it was a “prior
sentence of imprisonment” that was longer than thirteen
months. However, § 4A1.2(a)(1) excludes counting a
sentence as a “prior sentence” for the purposes
of calculating criminal history if the sentence was imposed
for conduct that is “part of the instant
offense.” Mr. West believes that because he was
exchanging oxycodone pills for methamphetamine, the state
sentence should be treated as “part of the instant
offense.” By doing so, this would reduce his criminal
history from a score of four to a score of one, dropping his
criminal history category from III to I. United States
Sentencing Guidelines § 4B1.5.
Sixth Circuit tells us the correct analysis is whether the
distribution of oxycodone is relevant conduct to the instant
offense under the provisions of § 1B1.3. United
States v. West, No. 17-6348, at 3 (6th Cir. 2018). Under
this section “relevant conduct” includes
“all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused
by the defendant . . . that occurred during the commission of
the offense of conviction, in preparation for that offense,
or in the course of attempting to avoid detection or
responsibility for that offense.” United States
Sentencing Guidelines § 1B1.3(a)(1). When two offenses
would have been grouped for sentencing under § 3D1.2(d),
relevant conduct includes “all acts . . . that were
part of the same course of conduct or common scheme or plan
as the offense of conviction.” United States Sentencing
Guidelines § 1B1.3(a)(2). Both the intent to distribute
oxycodone and the conspiracy to distribute methamphetamine
offenses would have been grouped under §§ 2D1.1 and
3D1.2(d) if both offenses had been charged in federal court
and had been sentenced at the same time.
Sixth Circuit also says the appropriate inquiry is whether
the “prior sentence” and the instance offense
involve conduct that is severable into separate offenses.
United States v. Beddow, 957 F.2d 1330, 1338 (6th
Cir. 1992). This is a “fact-specific inquiry”
involving factors such as “the temporal and
geographical proximity of the two offenses, common victims,
and a common criminal plan or intent also must be
Sixth Circuit in Beddow found that carrying a
concealed firearm was severable conduct from money laundering
because the different criminal conduct harmed different
societal interests. Id. at 1339. Additionally, the
crime of money laundering had been completed (when defendant
transported emeralds into the country in order to launder
drug month) six months earlier, even though he was arrested
with the firearm while trying to sell the emeralds.
United States v. Hicks, the Sixth Circuit also
considered this question. Hicks was arrested for attempted
murder and eventually pled guilty to aggravated assault in
state court. Hicks, 4 F.3d 1358, 1360 (6th Cir.
1993). When he was arrested, officers also found discovered
cocaine. Id. Hicks was also convicted in state court
for distribution of cocaine. Id. In federal court,
Hicks was indicted for conspiracy to distribute cocaine,
fraud, and illegal possession of a firearm, to which he
entered a guilty plea to the firearm charge and the US
dismissed the cocaine and fraud charges. Id. at
1360–61. The Sixth Circuit determined the state cocaine
conviction was a “prior sentence” because the
discovery of cocaine was not related to the attempted murder
and possession of a firearm, nor was any evidence presented
to connect the firearm to the defendant’s drug
trafficking activities. Id. at 1362–63.
the distribution of methamphetamine and distribution of
oxycodone are distinct offenses. The United States could have
charged both in the same indictment but chose not to. While
many of the elements of the crimes would have been the same,
the drugs are different, and proof of the existence of
oxycodone is not necessary for a conviction related to
conspiracy to distribute methamphetamine. United States
v. Hansen, 70 F. 3d 1273 (Table), 1995 WL 684525 at *3
(6th Cir. 1995); United States v. Underwood, 11 F.
App’x 581, 587 (6th Cir. 2001).
the oxycodone state charge occurred during the federal
methamphetamine conspiracy, which suggests relevant conduct
in some cases. United States v. Ward, 506 F.3d 468,
474 (6th Cir. 2007); United States v. Young, 310 F.
App’x 784, 798–99 (6th Cir. 2009); United
States v. Garcia-Rodriguez, 718 F. App’x 322,
324–25 (6th Cir. 2017). But timing by itself is not
enough to classify the crimes as relevant conduct, as Mr.
West conceded to the Court. [R. 124 at 11.] The oxycodone
charge was for an isolated and discrete incident. The state
conviction occurred “on or about the 4th day of August,
2015,” [R. 120 at 13] while the federal conviction
occurred between June 2015 and May 25, 2016 [R. 1 at 1]. Mr.
West has ...