United States v. Bryan Lynn Shumate

Bryan Lynn Shumate was convicted by guilty plea and sentenced for importation of marijuana. See 21 U.S.C. §§ 952 , 960. The district court used an Oregon drug conviction in deciding that he was a career offender. See USSG § 4B1.1. 1 Shumate claims that from a categorical perspective, the conviction was not a qualifying one. We disagree and affirm.

BACKGROUND

In March 2001, Shumate was arrested at the San Ysidro Port of Entry when custom inspectors found 34 packages of marijuana concealed in various places in an automo *1028 bile that he was driving. He was the sole occupant of the automobile. He ultimately pled guilty to knowing and intentional importation of marijuana from Mexico into the United States. See 21 U.S.C. §§ 952 , 960.

At sentencing, the district court determined that Shumate was a career offender within the meaning of USSG § 4B1.1, which provides, in pertinent part:

The result was that Shumate’s total offense level became 14 and his criminal history level became VI, which placed him in a guideline range of 37-46 months. 2 The district court sentenced him to imprisonment for 37 months.

The district court found him to be a career offender because of two…

concurring:

I agree with the conclusion that Shu-mate’s Oregon conviction was a predicate offense for career offender purposes. I also agree that after our decision in United States v. Cox, 74 F.3d 189 (9th Cir.1996), USSG § 4B1.2 “allows inclusion of solicitation for controlled substance offenses.” Slip Op. at-. I do not understand Cox or our holding today to mean, however, that solicitation of another to commit a controlled substance offense will always automatically qualify as a predicate offense under USSG § 4B1.1, without regard to the statute of conviction. As the Sentencing Guidelines direct, the ultimate focus of inquiry must be on “the offense of conviction (i.e., the conduct of which the defendant was convicted)” and whether it describes an offense involving conduct which meets the Guidelines’ definition of a controlled substance offense. See USSG § 4B1.2, comment, (n.2). Assuming for purposes of the categorical analysis that Shumate’s Oregon conviction was for solicitation of delivery of marijuana, I believe that his conviction satisfies this test.

As noted in the opinion, under Oregon Revised Statute (“ORS”) § 475.992(1), solicitation of delivery of marijuana…

329 F.3d 1026 UNITED STATES of America, Plaintiff-Appellee, v. Bryan Lynn SHUMATE, Defendant-Appellant. No. 01-50610. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 8, 2003. Filed May 20, 2003. Siri Shetty, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant. Patrick K. O'Toole, United States Attorney (when brief was filed), Carol C. Lam, United States Attorney (when opinion was filed), Mi Yung Claire Park, Assistant U.S. Attorney (on the brief), Pennie M. Carlos, Assistant U.S. Attorney (at oral argument), United States Attorney's Office, San Diego, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California; Robert E. Jones, District Judge, Presiding. D.C. No. CR-01-01954-REJ. Before: BEEZER, FERNANDEZ, and PAEZ, Circuit Judges. Opinion by Judge FERNANDEZ; Concurring opinion by Judge PAEZ. OPINION FERNANDEZ, Circuit Judge: 1 Bryan Lynn Shumate was convicted by guilty plea and sentenced for importation of marijuana. See 21 U.S.C. §§ 952 , 960. The district court used an Oregon drug conviction in deciding that he was a career offender. See USSG § 4B1.1. 1…