United States v. Allen, No. 17-4308 (4th Cir. 2018)Annotate this Case
Allen pleaded guilty to the unlawful possession of firearms by a convicted felon, 18 U.S.C. 922(g)(1) and 924(a)(2). His PSR reported that, in 2009, Allen was convicted of using a communication facility to facilitate the crime of possession with intent to distribute cocaine base, 21 U.S.C. 843(b), and, in 2007, Allen was convicted of two North Carolina misdemeanors--possession of marijuana in an amount less than or equal to one-half ounce, and second-degree trespass. Those misdemeanor convictions were consolidated into one judgment for sentencing. The district court increased Allen’s base offense level under USSG 2K2.1(a)(2), based on his two prior felony convictions of “controlled substance offenses,” including his Section 843(b) conviction; added one point to Allen's criminal history score under USSG 4A1.1(c) based on the North Carolina consolidated judgment; determined that Allen’s Guidelines range was 84-105 months, varied downward, and imposed a sentence of 77 months’ imprisonment. The Fourth Circuit affirmed. The Section 843(b) commentary states that a Section 843(b) conviction is a “controlled substance offense” if the “underlying offense” is a “controlled substance offense.” Allen’s 2009 judgment shows that he used a communication facility to facilitate the underlying offense of possession with intent to distribute cocaine base, which is a “controlled substance offense.” The district court properly added one criminal history point for the North Carolina consolidated judgment.