United States of America v. Timothy Grayson

*The Honorable William H. Stafford, Jr., United States District Judge for the Northern District
of Florida, sitting by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0287p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA ,
Plaintiff-Appellee,
v.
TIMOTHY GRAYSON ,
Defendant-Appellant.
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No. 12-1113
Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
No. 4:10-cr-20388-4—Mark A. Goldsmith, District Judge.
Decided and Filed: September 27, 2013
Before: MERRITT, and CLAY, Circuit Judges; STAFFORD,* District Judge.
_________________
COUNSEL
ON BRIEF: Randall C. Roberts, Ann Arbor, Michigan, for Appellant. Kathryn
McCarthy, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for
Appellee.
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OPINION
_________________
MERRITT, Circuit Judge. Timothy Grayson appeals his sentence after receiving
an enhancement for a prior Michigan state conviction for “maintaining a drug house.”
He maintains that the state crime does not qualify as a “prior felony drug offense” under
21 U.S.C. § 802(44), which defines the enhancement as “an offense that is punishable
by imprisonment for more than one year under any law of the United States or of a State
or foreign country that prohibits or restricts conduct relating to narcotic drugs,
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No. 12-1113 United States v. Grayson Page 2
marihuana, anabolic steroids, or depressant or stimulant substances” (emphasis added).
Grayson argues that, notwithstanding the broad language, the statute requires a
defendant to have been convicted of a drug offense involving possession or distribution,
not simply aiding others. This precise question has not been previously decided.
Although the sentence for this nonviolent drug trafficking offense is 15 years
imprisonment, we must conclude on the single issue before us that Grayson’s prior
conviction for “maintaining a drug house” under Michigan state law qualifies as a “prior
felony drug offense” under 21 U.S.C. § 802(44) for purposes of enhancing his federal
sentence.
In 2010, Grayson was indicted for conspiracy to distribute powder and crack
cocaine and other drugs, 21 U.S.C. § 846; 21 U.S.C. § 841(a)(1), and for possession of
a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c). The application
of the “drug house” enhancement doubled his five-year mandatory minimum. Grayson
entered into a plea agreement, reserving the right to appeal the district court’s
determination of whether his prior state conviction qualified as a “prior felony drug
offense” as defined by 21 U.S.C. § 802(44). In 2004, Grayson was convicted of
“maintaining a drug house” in violation of Mich. Comp. Laws § 333.7405(1)(d). Such
a conviction under Michigan law requires that the defendant knew that the structure in
question was used for keeping or selling drugs, the defendant had some general control
over the structure, and that he maintained the structure. See People v. Bartlett,
585 N.W.2d 341, 348 (Mich. Ct. App. 1998). Grayson does not dispute that he was
properly convicted of this crime, which under Michigan law is punishable by up to two
years in prison. Mich. Comp. Laws § 333.7406. The Michigan “drug house” crime
satisfies the Section 802(44) requirement that the crime be punishable by more than one
year in prison. The Supreme Court has made clear that a state’s method of categorizing
crime is irrelevant and that the inquiry should focus on the duration of the potential
punishment for purposes of determining whether it qualifies as a “felony drug offense.”
Burgess v. United States, 553 U.S. 124, 134 (2008). The Court reasoned that Congress
chose the specific language in Section 802(44) in order to “bring a measure of
uniformity to the application of § 841(b)(1)(A) by eliminating disparities based on

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No. 12-1113 United States v. Grayson Page 3
divergent state classifications of offenses.” Id. Thus, it does not matter that Michigan
classifies “maintaining a drug house” as a misdemeanor. The crime is punishable by up
to two years in prison and therefore meets the requirements of Section 802(44).
Grayson is also in error that the Michigan crime of maintaining a drug house
does not “prohibit or restrict conduct relating to narcotic drugs.” Grayson’s conviction
for “maintaining a drug house” demonstrates that he had knowledge of drug activity in
a home that he controlled and maintained. Nothing in the language of Section 802(44)
states or implies that personal possession, distribution, or the personal use of drugs is
required. The Supreme Court, albeit in the different context of preemption under the
Airline Deregulation Act, stated that “relating to” carries a broad meaning—“to stand
in some relation; to have bearing or concern; to pertain; refer; to bring into association
with or connection with.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383
(1992) (quoting Black’s Law Dictionary 1158 (5th ed. 1979)). Using everyday English,
“maintaining a drug house,” as defined in Michigan law, is a crime “related” to drugs.
The cases Grayson cites in support of his argument do not convince us otherwise.
First, he points to cases involving simulated or imitation narcotics. Some courts have
concluded that a “felony drug offense” requires actual drugs, not imitation drugs, and
thus, prior convictions involving simulated substances do not meet the definition of
Section 802(44). See United States v. Brown, 598 F.3d 1013, 1016 (8th Cir. 2010);
United States v. Gardner, 534 F. Supp. 2d 655, 659 (W.D. Va. 2008). These cases are
irrelevant to the case before us. The language “maintaining a drug house” under
Michigan law restricts conduct relating to the drugs listed in the statute. We are not
looking at a prior conviction involving the use of imitation drugs, a category not
enumerated in the statute.
Grayson also cites to United States v. Gardner, 649 F.3d 437 (6th Cir. 2011), a
child pornography case. In Gardner, the district court declined to apply a sentencing
enhancement for a prior state conviction of aggravated sexual battery and this court
affirmed. Id. at 442. The enhancement at issue required a prior conviction of sexual
abuse of a minor. Id. The state statute under which the defendant was convicted did not

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No. 12-1113 United States v. Grayson Page 4
require that the abuse involve a minor and nothing but the pre-sentence report indicated
a minor was involved. Id. at 443. In other words, the enhancement had a very specific
requirement—a minor as a victim—and the defendant’s prior offense did not require this
element. In Grayson’s case, there is no missing element. A “felony drug offense”
requires the existence of a state law that prohibits or restricts conduct relating to drugs.
Michigan’s “maintaining a drug house” law does just that. Grayson prefers to read a
possession or distribution requirement into the statutory language, but the enhancement
statute is much broader and does not include such a requirement.
Grayson also argues that we should look to the Michigan sentencing scheme for
guidance. Grayson asserts that Michigan does not allow a “maintaining-a-drug-house”
conviction to be used for enhancement purposes under the controlled substance
provisions of the Public Health Code. Instead, he argues, such a crime may only be
used to designate a defendant as a “habitual criminal.” See People v. Mason, No.
251513, 2005 WL 356342, at *12 (Mich. Ct. App. Feb. 15, 2005). Grayson argues that
because Michigan treats its enhancements in this way, federal law should also not allow
the crime to serve as the basis for an enhancement. Michigan law has its own sentencing
enhancement system, but here we must apply the federal enhancement system. A
common sense interpretation of Section 802(44) requires that a state crime with the
elements of the “drug house” statute qualifies for this enhancement.
Grayson’s prior conviction for “maintaining a drug house” under Michigan state
law is a “prior felony drug offense” under Section 802(44). The district court judge
therefore was required to apply the enhancement and so are we. Accordingly, the
judgment of the district court is AFFIRMED.

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