UNITED STATES of America, Appellee, v. Shawn HILL, Defendant-Appellant, 688 F. App'x 81

SUMMARY ORDER Defendant-Appellant Shawn Hill appeals his sentence of 72 months’ imprisonment, entered after he pled guilty to the offense of unlawful possession of a firearm by a convicted felon. We assume the parties’ familiarity with the underlying facts and the procedural history of the case. The sole issue on appeal is whether the district court committed procedural error in determining that Hill’s prior state law conviction, based on his guilty plea to possession of narcotics with intent to sell in violation of Conn. Gen. Stat. § 21a-277(a), was a controlled substance offense within the meaning of U.S.S.G, §§ 2K2.1(a)(4)(

A) and 4B1.2(b), resulting in an incorrect computation of Hill’s Guidelines range. “A sentencing court commits procedural error when it fails to calculate (or incorrectly calculates) the Guidelines range[.]” United States v. Pattee, 820 F.3d 496, 512 (2d Cir. 2016) (citing United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc)). “We review de novo the district court’s determination of whether a prior offense was a ‘controlled substance offense,’ as defined by U.S.S.G. § 4B1.2[.]” United States v. Savage, 542 F.3d 959, 964 (2d Cir. 2008). Prior convictions under Conn. Gen. Stat. § 21a-277(

a) are analyzed for sentencing purposes using the modified categorical approach. See id. at 966. Under this approach, the Government bears the burden of showing “that the plea ‘necessarily’ rested on a fact identifying the conviction as a predicate offense.” Id. at 964 (quoting Shepard v. United States, 544 U.S. 13, 24, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). Here, the Government carried its burden by presenting the transcript of proceedings before the state court, which squarely addressed the matter. The transcript documents, inter alia, the state court requesting facts from the prosecutor.

It documents the state prosecutor then stating that Hill was apprehended holding 13 bags of crack cocaine in his mouth. It documents the state court subsequently asking Hill, “Are the facts correct?” And it documents Hill answering ‘Yes.” Hill argues that his simple and unequivocal response of “yes” was insufficient because it followed a recitation of facts with respect to three charges, he was not asked to admit each fact as the prosecutor presented it, and he might not have meant to “confirm[ ] every statement of fact by the prosecutor in all three files.” Appellant’s Brief at 11.

We see no merit in this argument, given that the transcript shows that Hill was asked at the outset, with respect to the “charge of possession of narcotics with intent to sell, violation of 21a-277(a), what is your plea, guilty or not guilty?” He responded, “Guilty.” App’x at 131. The record clearly shows that Hill confirmed that he possessed 13 bags of crack cocaine. Hill does not and cannot seriously dispute that this conduct constitutes possession of a controlled substance with intent to distribute, which amounts to a “controlled substance offense” under the Guidelines definition.

Compare U.S.S.G. § 4B 1.2(b) (“The term ‘controlled substance offense’ means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the ... possession of a controlled substance (or a counterfeit substance) with intent to ... distributee.]”), with Conn. Gen. Stat. § 21a-277(a) (“Any person who .., possesses with the intent to sell ... any controlled substance ... for a first offense, shall be imprisoned not more than fifteen years[.]”).

The district court correctly determined that Hill’s Connecticut conviction was a controlled substance offense and correctly computed the Guidelines range accordingly. There was no procedural error. We have considered all of Hill’s arguments to the contrary and find them without merit. The judgment of the district court is AFFIRMED.