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United States v. Hixon

United States District Court, E.D. Kentucky, Central Division, Lexington

December 5, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SHANNON D. HIXON, Defendant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves, Chief Judge United States District Court

         Defendant Shannon Hixon has submitted three objections to the presentence investigation report (“PSR”) prepared in his case. He first objects to the imposition of the statutory mandatory minimum term of life imprisonment. In support, Hixon asserts that his prior felony drug conviction does not fit within the meaning of a “felony drug offense” which results in an enhanced statutory penalty. Within this objection, he also contends that sentencing him to a mandatory term of life imprisonment violates his Due Process and Equal Protection rights. Second, Hixon makes a factual objection regarding the testimony of the forensic toxicologist. And third, he objects to the conclusion that he has the limited ability to pay a fine.

         This opinion addresses Hixon's first two objections. Because Hixon's prior conviction qualifies as a “felony drug offense” and because 21 U.S.C. § 841(b)(1)(C) is constitutional, his first objection will be overruled. His second objection will be overruled because expert testimony was presented during trial establishing that the victim's cause of death was a fentanyl overdose and, but for the presence of fentanyl, the victim would have lived. The parties may address whether a fine should be imposed at the time of the sentencing hearing.

         I.

         Hixon was convicted by a jury of one count of conspiring to distribute a quantity of pills containing a detectable amount of oxycodone and/or a mixture or substance containing a detectable amount of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. He was also convicted of one count of knowingly and intentionally distributing a mixture or substance containing fentanyl, the use of which resulted in the overdose death of K.F., in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). [Record No. 72]

         The government filed a notice of prior conviction, explaining that if the defendant was convicted of distribution resulting in death, he would be subject to an enhanced statutory punishment under 21 U.S.C. § 841(b)(1)(C) because he had a prior final drug felony conviction for trafficking in a controlled substance first degree from May 7, 2004, in the Fayette Circuit Court. [Record No. 55] Hixon's previous conviction was under Kentucky Revised Statutes (“KRS”) § 218A.1412 (2004). Hixon objected to the 851-notice, asserting that the enhanced penalty was unconstitutional in light of the First Step Act. He claimed that the change in the law violated his rights under the Eighth Amendment, the Due Process Clause, and the Equal Protection Clause. This Court overruled his objection to the 851-enhancement following a hearing, finding that the enhanced statutory penalty was constitutional and his prior conviction was for a “felony drug offense.”

         The Probation Office then prepared a PSR. As outlined in paragraphs 56 and 57, regarding Count One, the maximum term of imprisonment is 20 years, while the minimum term of imprisonment for Count Two is life. Hixon filed three objections to the PSR. As noted above, he first objected to the statutory mandatory minimum applicable to Count Two and again argued that a mandatory minimum sentence of life imprisonment is unconstitutional. He contends that his prior conviction does not fit the definition of a “felony drug offense.”

         Hixon asserts that KRS § 218A.1412 is broader than the definition of “felony drug offense” and the statute is not divisible, meaning that Hixon's prior conviction cannot be deemed a “felony drug offense.” Further, he argues that application of a mandatory minimum of life imprisonment violates his Due Process and Equal Protection rights. Additionally, Hixon objected to a factual determination that the forensic scientist testified to K.F.'s cause of death. Through an Addendum to the PSR, the probation officer addressed Hixon's objection to the factual finding by altering Paragraph 10 of the PSR to reflect the cause of death on the Kentucky Certificate of Death. However, this was unnecessary in light of the evidence presented during trial. The United States submitted a response and asserted that all of the defendant's objections should be overruled. [Record No. 88]

         II.

         i. Hixon's prior conviction qualifies as a “felony drug offense.”

         An individual is subject to a sentence of life imprisonment if he has a prior conviction for a “felony drug offense” that has become final and if death or serious bodily injury resulted from the current offense. 21 U.S.C. § 841(b)(1)(C). A “felony drug offense” is defined as “an offense 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).

         Hixon argues that the Court must determine whether his conviction is a “felony drug offense” using the categorical approach. He asserts that the least culpable conduct in the Kentucky statute falls outside the definition of a “felony drug offense” and thus is too broad to be considered “felony drug offense.” He contends that KRS § 218A.1312 criminalizes trafficking controlled substances and their analogues, which is not referenced in the definition of a “felony drug offense, ” meaning the statute is broader than the federal definition. He further contends that the Kentucky drug laws are not divisible. Thus, he believes that his prior conviction cannot be deemed a “felony drug offense.”

         Hixon cites to United States v. Havis, 927 F.3d 382, 384 (6th Cir. 2019), where the Sixth Circuit discussed the categorical approach to determine whether a prior conviction counted as a predicate offense under the United States Sentencing Guidelines (“the Guidelines”), to support the use of the categorical approach to determine if his conviction counts as a qualifying “felony drug offense.” The Sixth Circuit stated in Havis that the definition of “controlled substance offense” under the Guidelines does not include attempt crimes under the categorical approach. Id. at 387');">87. He also references United States v. Yates, 866 F.3d 723, 728 (6th Cir. 2017), where the Sixth Circuit used the categorical approach to determine whether a state robbery conviction constituted a crime of violence under the Guidelines. The cases referenced by the defendant that he contends require the use of the categorical approach are interpreting language from the Guidelines, not interpreting “felony drug offense” under 21 U.S.C. § 841.

         In United States v. Soto, 8 Fed.Appx. 535, 541 (6th Cir. 2001), the Sixth Circuit explained that the “court does not employ a categorical approach to determine whether a prior conviction constitutes a ‘felony drug offense' for purposes of section 841(b)(1).” It again stated in Collinsv. Warden, No. 18-5505, 2018 U.S. App. LEXIS 32177, at *4 (6th Cir. Nov. 13, 2018) (citing Soto, 8 Fed.Appx. at 541), that the court does not use the categorical approach when determining whether a prior conviction is a “felony drug offense” under § 841(b)(1). The court explained that it “looks to see ...


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