United States of America v.  BASEEM SHAKIR WILLIAMS, a/k/a Gregory Burgess, a/k/a Donnell Conklin, a/k/a Warren…

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 01-4551  BASEEM SHAKIR WILLIAMS, a/k/a
Gregory Burgess, a/k/a Donnell
Conklin, a/k/a Warren Kennedy,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, District Judge.
(CR-00-431)
Argued: June 6, 2002
Decided: April 17, 2003
Before MICHAEL and GREGORY, Circuit Judges, and
Robert R. BEEZER, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Vacated and remanded by published opinion. Senior Judge Beezer
wrote the opinion, in which Judge Michael and Judge Gregory joined.
COUNSEL
ARGUED: Andrew Ross Mackenzie, BARRETT & MACKENZIE,
L.L.C., Greenville, South Carolina, for Appellant. Rose Mary

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Parham, Assistant United States Attorney, Florence, South Carolina,
for Appellee. ON BRIEF: J. Strom Thurmond, Jr., United States
Attorney, Florence, South Carolina, for Appellee.
OPINION
BEEZER, Senior Circuit Judge:
Baseem Shakir Williams appeals the enhancement of his sentence
under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Section
923(e) is a sentencing enhancement statute for persons who have at
least three prior convictions for violent felonies or serious drug
offenses. Williams contends that two of his three prior drug convic-
tions cannot serve as predicate offenses under § 924(e) because they
were not "serious drug offenses."
We have jurisdiction under 18 U.S.C. § 3742. We conclude that
Williams’s sentence should be vacated because neither one of his two
New Jersey convictions meet the definition of a serious drug offense
under § 924(e).
I
Williams was indicted by a federal grand jury for possessing a fire-
arm transported in interstate commerce after having been convicted
of a crime punishable by imprisonment for a term exceeding one year,
in violation of 18 U.S.C. § 922(g).1 Williams pleaded guilty to the
charge. As part of the plea agreement, the parties agreed that Wil-
liams could contest any use of prior convictions to enhance his sen-
tence under 18 U.S.C. § 924(e).
The Presentence Report ("PSR") stated that three of Williams’s
prior drug convictions qualified him as an armed career criminal
118 U.S.C. § 922(g) states, in part: "It shall be unlawful for any person
. . . who has been convicted in any court of, [sic] a crime punishable by
imprisonment for a term exceeding one year . . . to ship or transport in
interstate or foreign commerce . . . any firearm or ammunition."
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under § 924(e) and U.S.S.G. § 4B1.4(b)(3)(B). According to the PSR,
Williams’s guidelines range sentence, with the § 924(e) enhancement
included, was between 180 and 210 months.
Williams objected to the PSR’s conclusion that he qualified as an
armed career criminal. Williams conceded that a 1992 North Carolina
conviction for felony trafficking in cocaine qualified as a predicate
offense under § 924(e). He disputed, though, the PSR’s conclusion
regarding two 1993 New Jersey convictions, one for possession with
intent to distribute cocaine and heroin (in violation of N.J.S. § 2C:35-
5) and another for possession with intent to distribute heroin within
1000 feet of school property (in violation of N.J.S. § 2C:35-7).
The district court sentenced Williams, as an armed career criminal,
to 180 months imprisonment.2
II
We review de novo the question whether a prior conviction quali-
fies as a predicate conviction under § 924(e). United States v. Bran-
don, 247 F.3d 186, 188 (4th Cir. 2001).
A
A person convicted of violating § 922(g) may be subject to an
enhanced sentence under § 924(e) as an armed career criminal. Sec-
tion § 924(e) states that if a person violates § 922(g) "and has three
previous convictions . . . for a violent felony or a serious drug offense,
or both . . . such person shall be . . . imprisoned not less than fifteen
years." A "serious drug offense" is defined as
(i) an offense under the Controlled Substances Act . . . for
which a maximum term of imprisonment of ten years or
more is prescribed by law; or
2Williams was arrested in New Jersey for possession with intent to dis-
tribute on December 18, 1990 and for possession with intent to distribute
within 1000 feet of school property on October 5, 1990. He pleaded
guilty to both crimes and was sentenced for both crimes on January 29,
1993.
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(ii) an offense under State law, involving manufacturing,
distributing or possessing with intent to manufacture or dis-
tribute, a controlled substance . . . for which a maximum
term of imprisonment of ten years or more is prescribed by
law.
§ 924(e)(2)(A).
Williams disputes the district court’s finding that his two New Jer-
sey convictions are "serious drug offenses" as defined by
§ 924(e)(2)(A). Williams argues that he was not subject to a maxi-
mum term of 10 years or more for those offenses, and that they there-
fore could not serve as predicate offenses under § 924(e).
B
The Government argues that Williams’s 1992 North Carolina con-
viction for felony trafficking in cocaine subjected him to an enhanced
New Jersey sentence of up to ten years imprisonment for each of his
New Jersey drug offenses. We disagree. Under New Jersey’s
enhancement scheme, the established fact of a prior conviction does
not automatically subject a defendant to an enhanced penalty. The
sentencing court may reject the prosecutor’s application for enhance-
ment if the court finds that the prosecutor has abused his discretion
in submitting the application. See State v. Lagares, 601 A.2d 698, 705
(N.J. 1992). The prosecutor did not submit an enhancement applica-
tion in Williams’s New Jersey case, and no evidence in the record
shows whether such an application would have been accepted if it had
been submitted. The district court erred by finding Williams was in
fact subject to ten years imprisonment for each of his New Jersey
offenses and that those convictions were therefore "serious drug
offenses."
We generally employ a "categorical approach" to determine
whether a prior conviction serves as a predicate conviction under
§ 924(e), pursuant to Taylor v. United States, 495 U.S. 575, 600
(1990). Brandon, 247 F.3d at 188. Under this approach, we will
"look[ ] only to the statutory definitions of the prior offenses, and not
to the particular facts underlying those convictions." Id. In cases
where the state conviction can be violated in a number of ways, some
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of which would support enhancement under § 924(e) and some of
which would not, the categorical approach permits "the sentencing
court [to] go beyond the fact of conviction and the statutory definition
of the underlying crime [to] examine the indictment, other charging
papers, or jury instructions to determine whether the defendant was
charged with a crime that meets the requirements of § 924(e)." Id.
(citing Taylor, 495 U.S. at 602).
The New Jersey statutes under which Williams was convicted,
§§ 2C:35-5 and 2C:35-7, may be violated both in ways that qualify
as serious drug offenses and in ways that do not. If a person distrib-
utes more than five ounces of cocaine in New Jersey, he has commit-
ted a first degree crime in violation of §§ 2C:35-5a(1) and 2C:35-
5b(1) and is ordinarily subject to a maximum of twenty years impris-
onment under § 2C:43-6a(1).3 Conviction of a first degree crime
under New Jersey law will qualify as a "serious drug offense" under
§ 924(e). If the person distributes less than one-half ounce of cocaine
in New Jersey, he has committed a third degree crime in violation of
§§ 2C:35-5a(1) and 2C:35-5b(3) and is ordinarily subject to a maxi-
mum of five years imprisonment under § 2C:43-6a(3). Conviction of
a third degree crime under New Jersey law will not qualify as a "seri-
ous drug offense" under § 924(e) because the maximum term of
imprisonment prescribed by law is less than ten years. Because the
3N.J.S. § 2c:43-6a states:
Except as otherwise provided, a person who has been con-
victed of a crime may be sentenced to imprisonment, as follows:
(1) In the case of a crime of the first degree, for a specific
term of years which shall be fixed by the court and shall be
between 10 years and 20 years;
(2) In the case of a crime of the second degree, for a spe-
cific term of years which shall be fixed by the court and shall
be between five years and 10 years;
(3) In the case of a crime of the third degree, for a specific
term of years which shall be fixed by the court and shall be
between three years and five years;
(4) In the case of a crime of the fourth degree, for a spe-
cific term which shall be fixed by the court and shall not
exceed 18 months.
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statutes under which Williams was convicted can be violated in a
number of ways, some of which would support an enhancement and
some of which would not, determination of whether Williams’s New
Jersey convictions qualify as predicate convictions under § 924(e)
may, under Taylor, involve examination of "the indictment, other
charging papers, or jury instructions." Brandon, 247 F.3d at 188 (cit-
ing Taylor, 495 U.S. at 602).
Williams’s first New Jersey conviction was for possession with
intent to distribute less than one-half ounce of cocaine and heroin, in
violation of §§ 2C:35-5a(1) and 2C:35-5b(3). Williams’s second New
Jersey conviction was for possession with intent to distribute an
unspecified amount of heroin within 1000 feet of school property, in
violation of § 2C:35-7. Both offenses are third degree crimes ordinar-
ily punishable by maximum imprisonment of five years. § 2C:43-
6a(3).
Section 2C:43-6f, however, states that persons convicted of violat-
ing § 2C:35-5 or § 2C:35-7 who were "previously convicted of manu-
facturing, distributing, dispensing, or possessing with intent to
distribute" a controlled substance "shall upon application of the prose-
cuting attorney be sentenced by the court to an extended term as
authorized by [§ 2C:43-7]." Under § 2C:43-7a(4), the maximum sen-
tence for a third degree crime is ten years. Williams was convicted of
felony trafficking in cocaine in North Carolina in April 1992. Wil-
liams was sentenced for the New Jersey offenses in January 1993.
Williams’s North Carolina conviction could serve as a predicate
offense to his New Jersey offenses.
The fact that Williams could have had his second sentence
extended under New Jersey law, however, does not mean Williams’s
conviction was for an offense "for which a maximum term of impris-
onment of ten years or more is prescribed by law." The New Jersey
sentencing statute includes procedural safeguards that must be consid-
ered before an enhanced term can be imposed. See § 2C:43-6(f).
Absent exercise of these procedural safeguards, Williams could not
have been subject to the enhanced sentence and the maximum term
of imprisonment prescribed by law for his crimes is five years.
There are at least three procedural safeguards that must be consid-
ered before Williams could be subject to an enhanced sentence. One,
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the prosecutor must first make an application for an extended term.
Id. Two, the New Jersey trial court cannot impose an extended term
pursuant to § 2C:43-6f unless the prior conviction has been estab-
lished by the prosecution by a preponderance of the evidence at a
hearing. Id. Three, the New Jersey trial court is permitted to reject a
prosecutor’s application for enhancement if the court finds that an
abuse of prosecutorial discretion existed in making the application.
Lagares, 601 A.2d at 705.
To subject Williams to an enhancement now, based upon a sen-
tence that he could have received only after the exercise of procedural
safeguards, would compromise not only Williams’s statutory rights,
but his due process rights as well.
This reasoning is not inconsistent with Apprendi v. New Jersey,
530 U.S. 466 (2000). Apprendi requires that any fact that increases
the statutory maximum penalty for a crime be submitted to a jury and
proven beyond a reasonable doubt. Id. at 490. Even though Apprendi
carves out an exception for prior convictions, the Court’s concern in
Apprendi was whether the Constitution requires the fact of a prior
conviction to be submitted to a jury and proved beyond a reasonable
doubt when used to enhance a sentence. Id. Here, our question is
whether § 924(e) allows us to overlook a state’s procedures in deter-
mining what constitutes a serious drug offense.
Since § 924(e) leaves the definition of a serious drug offense partly
up to the states, states are free to require procedural safeguards, like
requiring a prosecutor’s application and a judge’s review, before per-
mitting an enhanced sentence under state law. Even though prior con-
victions are released from Apprendi’s procedural requirements, they
are still subject to New Jersey’s procedural requirements. Apprendi
determines only what the Constitution requires and does not bear on
what it takes under New Jersey law to earn an enhancement.
As the New Jersey Supreme Court made clear in State v. Lagares,
the State has a great interest in ensuring that sentencing enhancements
be carried out in a fashion that limits potential prosecutorial arbitrari-
ness or abuse. 601 A.2d at 704-05; see also, Directive Implementing
Guidelines For Determining Whether to Apply For An Extended
Term Pursuant to N.J.S.A. 2C:43-6f, April 20, 1992. This separate
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prosecutorial discretion concern takes the statute beyond the prior
conviction exception recognized by Apprendi. Instead, we find here
an independent, clearly articulated procedural requirement that must
be satisfied before a sentence can exceed the statutory maximum of
5 years. Accordingly, it is vital that our interpretation of New Jersey
law not vitiate the requirement that a state court review applications
for enhancement.
C
The Government contends that even if Williams’s New Jersey
offenses did not subject him to ten years imprisonment under New
Jersey law, the offenses would have subjected him to ten years if they
were prosecuted under Federal law. The convictions would then count
as predicate offenses under § 924(e). The Government argues that it
makes no difference whether a defendant’s conviction is obtained in
state or federal court so long as the maximum penalty for the same
offense is ten years or more under either state or federal law. The
Government’s reading of § 924(e) does not comport with the plain
language reading of the statute.
The Tenth Circuit addressed the converse of this question in United
States v. McMahon, 91 F.3d 1394 (10th Cir. 1996). McMahon argued
that, although his state conviction carried a penalty of ten years or
more in state prison, the same offense would only subject him to five
years under federal law. Id. at 1398. He contended that "state offenses
should be treated like the most analogous federal drug offense to
ensure equality in sentencing under the [Armed Career Criminal
Act]," and that therefore his state conviction did not qualify as a pred-
icate offense under the Act. Id. The Tenth Circuit rejected
McMahon’s argument, holding that "the wording of [§ 924(e)] does
not permit that interpretation." Id.
A serious drug offense, under § 924(e)(2)(A), is defined as a con-
viction for either "(i) an offense under the Controlled Substance Act
. . . for which a maximum term of imprisonment of ten years or more
is prescribed by law . . . or (ii) an offense under State law, involving
. . . a controlled substance . . . for which a maximum term of impris-
onment of ten years or more is prescribed by law." Subsection (i)
defines which federal crimes qualify and subsection (ii) defines which
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state crimes qualify as a serious drug offense. The disjunctive struc-
ture indicates that subsections (i) and (ii) are mutually exclusive. That
is, a crime may qualify as a serious drug offense by meeting all the
requirements of (i) or all the requirements of (ii), but not some of the
requirements of (i) and some of (ii). The Government’s argument that
a state crime offense can qualify as a "serious drug offense" under
subsection (i) does not comport with a plain reading of the statute.
A comparison between different subsections of § 924 reinforces the
conclusion that the government’s argument is inconsistent with the
plain reading of the statute. The definition of a "drug trafficking
crime" under 18 U.S.C. § 924(c)(2) is, in part, "any felony punishable
under the Controlled Substance Act." This definition, by way of the
phrase "punishable under," includes crimes under state law which are
potentially punishable under federal law, even absent an actual federal
charge or conviction. In contrast, the definition of a "serious drug
offense" under § 924(e)(2)(A)(i) is limited to offenses "under the
Controlled Substance Act." The omission of the phrase "punishable
under" from § 924(e)(2)(A)(i) is instructive. Giving meaning to every
word in § 924 requires interpreting the definition of a "serious drug
offense" more narrowly than the definition of a "drug trafficking
crime." Unlike a drug trafficking crime, an actual, as opposed to pos-
sible, conviction under the Controlled Substances Act is required for
a serious drug offense. Had Congress intended for state crimes to
qualify as serious drug offenses based on their similarity to violations
of the Controlled Substances Act, Congress would have included the
phrase "punishable under" in § 924(e)(2)(A)(i) as it did in its defini-
tion of drug trafficking crime under § 924(c)(2).
The Government cites one out-of-circuit district court case in sup-
port of its reading of § 924(e), United States v. Rissmiller, 905
F.Supp. 216, 221 (M.D. Penn. 1994). The Rissmiller court stated that
a serious drug offense under § 924(e) is "an offense that under federal
or state law would carry a maximum term of 10 years or more." Id.
at 221. The district court cited no authority for this proposition and
did not explain its reasoning. See id. In addition, the court found that
both federal and state law provided for penalties of greater than ten
years for the defendant’s crime, meaning that the quoted holding was
not necessary to the court’s disposition. Rissmiller is unpersuasive.
We are not able to accept the Government’s argument.
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CONCLUSION
Williams’s sentence is vacated and this case is remanded to the dis-
trict court for resentencing.
VACATED AND REMANDED
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