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United States v. Turner

United States District Court, D. Nevada

February 9, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD TURNER, Defendant.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         The Ninth Circuit Court of Appeals found that NRS § 453.321 is not categorically a controlled substance offense and reversed and remanded for this Court to determine “whether NRS § 453.321 is divisible and, if necessary, to apply the modified categorical approach.” (ECR No. 41 at 3.) Having reviewed the parties' supplemental briefs (ECF Nos. 46, 47), the Court determines that Defendant's prior drug offense does not constitute a controlled substance offense under United States Sentencing Guidelines § 2K2.1 (“Firearm Guideline”).

         II. BACKGROUND

         Defendant Richard Turner pled guilty to a single count of unlawful possession of a firearm by a felon under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) on January 1, 2017. (ECF No. 46 at 2; ECF No. 39 at 18.) Defendant's criminal history contains one prior drug offense, a violation of NRS § 453.321. (ECF No. 46 at 2.) NRS § 453.321 makes it unlawful for a person to:

(a) Import, transport, sell, exchange, barter, supply, prescribe, dispense, give away or administer a controlled or counterfeit substance;
(b) Manufacture or compound a counterfeit substance; or
(c) Offer or attempt to do any act set forth in paragraph (a) or (b).

         The parties disputed the appropriate base offense level at Defendant's first sentencing. (ECF No. 46 at 2.) The government sought a base offense level of 20 under the Firearm Guideline based on Defendant's prior drug offense. (Id.) The Firearm Guideline prescribes a base offense level of 20 if “the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of . . . a controlled substance offense.” USSG § 2K2.1. Defendant objected and sought a base level of 14, arguing the prior drug offense did not constitute a controlled substance offense as defined by the USSG (“Guidelines Controlled Substance Offense”). (ECF No. 46 at 2.)

         This Court found the base offense level to be 20, determining that Defendant's prior drug offense was a categorical match for a Guidelines Controlled Substance Offense. (Id.)

         Defendant appealed his sentence, and the Ninth Circuit held that “NRS § 453.321 is overbroad and is not categorically a controlled substance offense.” (ECF No. 41 at 3.) The Ninth Circuit remanded the case to this Court to determine “whether NRS § 453.321 is divisible and, if necessary, to apply the modified categorical approach.” (Id.)

         III. DISCUSSION

         A. Legal Framework

         Courts typically apply the three-step process set forth in Descamps v. United States, 133 S.Ct. 2276 (2013), and further explained in Mathis v. United States,136 S.Ct. 2243 (2016), to determine whether a prior conviction qualifies for a sentence enhancement. In this case, the Court need not consider the first step-whether Defendant's prior drug offense categorically constitutes a Guidelines ...


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