US v. Shields: Shields was arrested in West Virginia on an outstanding warrant from Ohio and found to be in possession of a firearm. He pleaded guilty to being a felon in possession of a firearm. At sentencing, the Government objected that the probation officer had failed to enhance Shields’ base offense level by four levels for a prior Ohio conviction that met the definition of “controlled substance offense.” Shields conceded that he was unaware of any caselaw supporting a contrary conclusion, but argued in the alternative for a variance sentence within the originally calculated Guideline range because had Shields sustained the same conviction across the river in West Virginia it would not have been a controlled substance offense under Campbell. The district court imposed a sentence of 51 months, the bottom of the Guideline range, without addressing Shields’ argument.
On appeal, the Fourth Circuit vacated Shields’ sentence and remanded for resentencing. The court noted that while the district court had addressed Shields’ prior conviction in the context of Guideline calculations, it did not go further and address Shields’ argument for a variance. That argument was not frivolous, as it was based on the need to avoid unwarranted disparities and that such disparities – produced when different states treat similar conduct different ways – “is the kind of disparity a district court could consider under §3553(a)(6).” The court also rejected the Government’s argument that any error was harmless.
NOTE: My office represented the defendant in this case.
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