United States v. Otis Hill ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-3790
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Otis Hill
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: December 14, 2020
Filed: March 3, 2021
[Unpublished]
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Before SMITH, Chief Judge, LOKEN and MELLOY, Circuit Judges.
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PER CURIAM.
Defendant Otis Hill pleaded guilty to one count of possession with intent to
distribute cocaine in violation of 21 U.S.C. § 841(a)(1). He appeals his sentence
arguing the district court1 improperly classified him as a career offender. In
particular, he argues: (1) a prior conviction for attempted robbery does not qualify as
a conviction for a “crime of violence,” U.S.S.G. § 4B1.2(a); and (2) a prior conviction
for conspiring to possess with intent to distribute cocaine base does not qualify as a
conviction for a “controlled substance offense,” U.S.S.G. § 4B1.2(b). Hill asserts
that, because references to inchoate offenses such as attempt and conspiracy appear
in the commentary to U.S.S.G. § 4B1.2 but not in the guideline’s actual text, such
offenses are not qualifying offenses. See U.S.S.G. § 4B1.2 cmt. n.1 (“‘Crime of
violence’ and ‘controlled substance offense’ include the offenses of aiding and
abetting, conspiring, and attempting to commit such offenses.”).
In making this argument, Hill acknowledges the district court followed
controlling circuit precedent as to this issue. See United States v. Mendoza-Figueroa,
65 F.3d 691, 694 (8th Cir. 1995) (en banc) (holding Sentencing Commission acted
within its authority in drafting commentary and permissibly concluded that
conspiracy offenses qualify under U.S.S.G. § 4B1.2); see also United States v.
Merritt, 934 F.3d 809, 811 (8th Cir. 2019); United States v. Bailey, 677 F.3d 816, 818
(8th Cir. 2012). Hill admits he asserts his argument to preserve the issue for en banc
or Supreme Court review. In doing so, he notes that two circuits disagree with the
majority view as held by the Eighth Circuit. See United States v. Havis, 927 F.3d
382, 386–87 (6th Cir. 2019) (per curiam) (attempt crimes not included in U.S.S.G.
§ 4B1.2(b)’s definition of “controlled substance offense”); United States v. Winstead,
890 F.3d 1082, 1091–92 (D.C. Cir. 2018) (same).
1
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
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Because the district court properly applied circuit precedent, we affirm the
judgment of the district court.2
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2
We grant Hill’s pending motion to file a pro se supplemental brief, but we
reject his arguments as asserted in the brief. See United States v. Miranda-Zarco, 836
F.3d 899, 901 (8th Cir. 2016) (although we generally deny leave for defendants with
counsel to file pro se briefs, we retain discretion to accept such filings). Hill argues
his conviction for conspiring to commit robbery is too old to count as a
career-offender predicate crime of violence. The general Guidelines provisions for
computing criminal history govern as to whether a prior conviction is too old to be
considered for career offender purposes. See U.S.S.G. § 4B1.2 cmt. n.3 (“The
provisions of § 4A1.2 (Definitions and Instructions for Computing Criminal History)
are applicable to the counting of convictions under § 4B1.1.”). Those provisions
include a 15-year “look back” window. See U.S.S.G. § 4A1.2(e)(1) (“Any prior
sentence of imprisonment exceeding one year and one month that was imposed within
fifteen years of the defendant’s commencement of the instant offense is counted. Also
count any prior sentence of imprisonment exceeding one year and one month,
whenever imposed, that resulted in the defendant being incarcerated during any part
of such fifteen-year period.” (emphasis added)). Here, Hill received a lengthy
suspended sentence on one of two counts of robbery conspiracy and a shorter
suspended sentence on a second count. He completed his shorter suspended sentence
more than fifteen years prior to commencement of the present offense. The longer
suspended sentence, however, was later revoked, and his revocation sentence resulted
in incarceration during the 15-year look-back period. See United States v. Montaque,
221 F.3d 1345, 1345 (8th Cir. 2000) (per curiam) (stating that for career offender
purposes, the court is to “count any earlier sentence of 13 months, whenever imposed,
resulting in defendant’s incarceration during any part of 15-year period preceding
current offense”). Hill does not challenge the timeliness of his drug distribution
conviction. As a result the district court correctly found two qualifying predicates
and properly classified Hill as a career offender.
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