Predicate conspiracy to possess cocaine under § 846 does not support enhancement under 2K2.1(a)(4)(A)

US v. Norman:  Thomas Norman received charges for being a felon in possession of a firearm, possessing heroin and cocaine with intent to distribute, and possessing a firearm in furtherance of a drug trafficking crime.  Police had an outstanding warrant for his arrest for violating the terms of his supervised release; when police pulled over Norman’s vehicle to arrest him pursuant to the warrant, they found a large amount of cash and a cell phone in Norman’s pockets.  Norman’s passenger, however, had a baggie in her hair containing cocaine residue; the police searched the vehicle and found further incriminating items. 

Norman moved to suppress and the district court denied the motion.  Norman was convicted after a bench trial.  On the basis of a prior conspiracy to possess cocaine and cocaine base with intent to distribute charge, Norman’s sentence was enhanced 6 levels under 2K2.1(a)(4)(A).  Norman objected to the conviction, but not the sentence. 

The government maintained that the warrantless search of Norman’s vehicle was valid as a search incident to arrest of the passenger.  The Fourth Circuit held that Normal offered no rebuttal to this argument, and that it agreed with the government.  Norman’s challenge to his conviction failed. 

Norman’s challenge to the six-level enhancement applied to his sentence was a winner, but because Norman did not object to his sentence, the Fourth Circuit reviewed for plain error and found that while an error had been made in applying the enhancement, the error was not plain, so it would not reverse. 

Here, the Fourth Circuit took the opportunity to clarify that Norman’s conspiracy to possession cocaine and cocaine base in violation of 21 USC § 846 is broader than the definition of the generic crime of conspiracy, so his conspiracy conviction does not qualify as a “controlled substance offense” under the Guidelines. Unfortunately, though, some earlier case law muddied the waters a bit, making the assumption that this conspiracy offense was a “controlled substance offense” sufficiently so murky, that it was not plainly an error for the district court to apply the enhancement, so the Fourth Circuit allowed the sentence to remain.