Memorandum Order — United States v. Javon D. Jackson (Dkt. 54, March 8, 2022)

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Document 54, filed March 8, 2022, in Case 1:21-cr-00038-LPS, in the U.S. District Court for the District of Delaware: a Memorandum Order by Judge Leonard P. Stark in United States of America v. Javon D. Jackson, Crim. No. 21-38-LPS. The Court overrules Jackson's objection to the presentence investigation report based on his second overbreadth argument, which challenges whether his Delaware drug conviction is a controlled substance offense for the career offender enhancement. It concludes that Delaware's controlled substances statute is divisible by drug type and that his conviction under 16 Del. C. § 4753(1) is no broader than the Guidelines' definition. The order states that the Guidelines applicable to Jackson are 262 to 327 months imprisonment.

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 Case 1:21-cr-00038-LPS Document 54 Filed 03/08/22 Page 1 of 10 PageID #: 371




                      IN THE UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF DELAWARE



 UNITED STATES OF AMERICA,

        V.                                                        Crim. No. 21-38-LPS


 JAVON D.JACKSON,

                Defendant.



                                  MEMORANDUM ORDER


       WHEREAS,Defendant Javon D. Jackson pled guilty to one count of possession ofa

fireann in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(see

generally D.L 34);

       WHEREAS,on February 4,2022,U.S. Probation and Pretrial Services filed a final

presentence investigation report(D.I. 43)("PSR");

       WHEREAS,Jackson and the government submitted initial briefing on Jackson's

objections to the PSR,including his objection that Delaware's controlled substances statute is

overbroad, such that a violation ofit should not qualify as a controlled substance offense for

purposes ofthe career offender enhancement in the United States Sentencing Guidelines

("U.S.S.G." or "Guidelines")(see generally D.I. 42,44,46,47);

       WHEREAS,on February 11,2022,the Court heard oral argument(see Feb. 11,2022

Tr.), rejected Jackson's first overbreadth argument(see D.I. 42 at 2-5), and ordered supplemental

briefing on Jackson's second overbreadth argument(see id. at 5-9);

       WHEREAS,the parties submitted supplemental briefing on Jackson's second

overbreadth argument(see generally D.I. 49,50, 51, 52,53);


                                                 1
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       WHEREAS,the Court has carefully considered all the arguments presented by the parties

in the initial and supplemental briefing, as well as their arguments dining the February

sentencing hearing;

       NOW,THEREFORE,IT IS HEREBY ORDERED that, for the reasons given below,

Jackson's objection to the PSR based on his second overbreadth argument is OVERRULED.

Because Jackson qualifies as a career offender, the Guidelines applicable to him, and fi^om which

the Coiut will begin its analysis in determining an appropriate sentence, are 262 to 327 months

imprisonment,          PSRf|143-44)

          1. Under Guidelines § 4B1.1(a), a defendant qualifies as a career offender if he "has

at least two prior felony convictions of either a crime of violence or a controlled substance

offense." The Guidelines define a "controlled substance offense" as"an offense under federal

or state law, punishable by imprisonment for a term exceeding one year, that prohibits the

manufacture, import, export, distribution, or dispensing of a controlled substance(or a

counterfeit substance) or the possession of a controlled substance (or counterfeit substance) with

intent to manufacture,import, export, distribute, or dispense." U.S.S.G. § 4B1.2(b). To

determine whether a state conviction is a qualifying predicate "controlled substance offense,"

courts employ the categorical approach or modified categorical approach and compare the state

statute with the generic definition in the Guidelines. See United States v. Williams, 898 F.3d

323,333(3d Cir. 2018).

           2. Jackson argues that his May 2017 couAdction for possession with intent to deliver

heroin(see PSR        82-88) does not qualify as a "controlled substance offense" under the

Guidelines because the schedule of controlled substances under Delaware law is broader than the
 Case 1:21-cr-00038-LPS Document 54 Filed 03/08/22 Page 3 of 10 PageID #: 373




schedule offederally controlled substances. (D.L 42 at 5-9) The statute Jackson pled guilty to

violating provides, in pertinent part, that "any person who ...[m]anufactures, delivers, or

possesses with the intent to manufacture or deliver a controlled substance in a Tier 2 quantity ...

shall be guilty ofa class C felony." 16 Del. C. § 4753(2017); see also D.I 47-2. Another

statutory provision lists ten options for a "Tier 2 quantity" of a controlled substance, including "2

grams or more of any morphine, opium or any salt, isomer or salt ofan isomer thereof, including

heroin, as described in § 4714 ofthis title, or of any mixture containing any such substance." 16

Del. C. § 4751C(4)(b)(2017);see also D.I. 47-3.

             3. To advance his overbreadth argument, Jackson contends that Delaware's

controlled substances statute is indivisible, as it sets out alternative means of committing the

same offense. {See generally D.I. 51,52) The government, by contrast, contends that the

statute is divisible by drug type, meaning that the type of controlled substance is an element of

the offense that the prosecution must prove beyond a reasonable doubt. {See generally D.I. 50,

53) The Court agrees with the government: Delaware's controlled substances statute is

divisible.


             4.   Divisible statutes "list elements in the alternative, and thereby define multiple

crimes." Mathis v. United States, 136 S. Ct. 2243,2249(2016); see also Descamps v. United

States, 570 U.S. 254,262(2013). "The first task for a sentencing court faced with an

alternatively phrased statute is ...to determine whether its listed items are elements or means."

Mathis, 136 S. Ct. at 2256. To make that determination, the sentencing court first looks at

whether state law characterizes the items as elements or means. Id. If a state court decision is

on point,"a sentencing judge need only follow what it says." Id. Otherwise, the statute itself
 Case 1:21-cr-00038-LPS Document 54 Filed 03/08/22 Page 4 of 10 PageID #: 374




"may resolve the issue." Id. For example, alternatives that carry different punishments are

necessarily elements, not means. See id. Finally,"if state law fails to provide clear answers,"

the sentencing court may look to "the record of a prior conviction itself." Id. For instance, if

an indictment orjury instructions single out a particular alternative, this suggests that the

alternative is an element ofthe crime. See id. at 2257.

          5. To answer the elements-or-means question with respect to the state offense for

which Jackson was convicted, 16 Del. C.§ 4753(1), the Court begins its analysis with relevant

state court decisions. The Delaware Supreme Court has consistently treated possession with

intent to deliver("PWID")specific controlled substances as distinct crimes. For example,that

court has held that"PWID Cocaine and PWID Marijuana are two distinct offenses because each

requires proof of a fact that the other does not." Gilmore v. State, 135 A.3d 77,77(Del. 2016);

see also Nance v. State, 903 A.2d 283,287(Del. 2006)(rejecting argument that PWID Cocaine

and PWID Marijuana involve same conduct because "[t]he promulgation oftwo drug statutes is a

clear indication that the legislature intended there to be two separate punishments for the two

acts"); see also Blake v. State,65 A.3d 557,559(Del. 2013)(explaining that defendant was

charged with both PWID Cocaine and PWID Heroin). The Delaware Supreme Court's

consistent treatment ofthese crimes as distinct strongly suggests that the identity ofthe drug is

an element ofthe crime.^



        ^ Ifthe identity ofthe drug is an element ofthe crime,then the State must prove beyond a
reasonable doubt, to each ofthe jurors, that the defendant possessed with intent to deliver (for
example)the same drug. A conviction could not be grovmded,for instance, in a findmg by half
the jurors that a defendant committed PWID Cocaine if the other halffound that he committed
PWID Heroin. On the other hand, if the identity ofthe drug is merely a means of violating the
statute, then the jury does not need to unanimously agree as to the identity ofthe drug in order to
 Case 1:21-cr-00038-LPS Document 54 Filed 03/08/22 Page 5 of 10 PageID #: 375




       The Delaware Superior Court's decision in State v. Adams,364 A.2d 1237(Del. Super.

Ct. 1976), supports the same conclusion. In Adams,the Court considered whether four charges

-PWID Marijuana,PWID Methamphetamine,PWID Phencyclidine, and PWID Methaqualone,

all of which were violations ofan earlier version of 16 Del. C.§ 4752 — were duplicative ofone

another(for purposes of evaluating a double jeopardy motion). See id. at 1238. The court

rejected the defendant's argument that § 4752 is a single offense regardless of drug type and,

thus, declined to consolidate the four charges. See id. at 1238-40. The Court reasoned that

§ 4752's reference to "a controlled substance" provided "some indication ofa legislative purpose

to make the crime apply to the individual substance rather than to the generic group

collectively." Id. at 1239.

       The same is true for the relevant version of§ 4753(1), which prohibits(among other

things) possession with intent to deliver "a controlled substance." The Adams Court explained

that § 4752's "emphasis[was] upon the substance as well as upon the act," unlike a statute such

as the larceny statute, which focuses exclusively on the act and not on the identity ofthe stolen

object. See id.("The emphasis [in § 4752]is upon the substance as well as upon the act or

action, the individual substance being at least as important as the act itself. This is in contrast to

statutes such as larceny or theft, where the thrust is the act ofthe illegal taking, and the

particularization ofthe item taken is secondary."). Likewise, the relevant version of§ 4753(1)

is intended to prohibit conduct with respect to particular substances. Thus,"[p]roofofthe




convict a defendant; they need merely all agree that he possessed with intent to deliver some
controlled substance. In the latter instance, Jackson might have a stronger argument that the
state offense is broader than the generic controlled substance offense and,therefore, does not
qualify as a predicate offense for purposes of applying the career offender enhancement.
 Case 1:21-cr-00038-LPS Document 54 Filed 03/08/22 Page 6 of 10 PageID #: 376




identity ofthe item possessed is an element ofthe offense," and an indictment under § 4753(1)

"must specify the drug involved." See id. at 1240. Although Jackson is correct that Delaware's

controlled substances statute has been significantly revised since Adams was decided {see D.I. 52

at 2), he has pointed to no indication that Delaware courts treat violations involving different

drugs as the same crime.^

          6. Although the state court decisions cited above are sufficient to answer the

elements-or-means question here, in the alternative the Court tums to the language ofthe statute

itself. See Mathis, 136 S. Ct. at 2256. The statutory language leads to the same conclusion,

although it does not, perhaps, compel it. The Supreme Court has explained that,"[i]f statutory

alternatives carry different punishments,then...they must be elements." Mathis, 136 S. Ct. at

2256(emphasis added). Consistent with this guidance, the Third Circuit has held that the

"statutory provision ofthe same punishment, regardless of which altemative was involved in a

crime, could indicate that the altematives are means," not elements. United States v. Aviles, 938

F.3d 503,513(3d Cir. 2019)(emphasis added). Here, § 4753 does not provide different

punishments for different drugs, so this principle does not conclusively establish that the identity



       ^ Jackson's reliance on Kelley v. State, 222 A.3d 1043(Del. 2019),is unpersuasive.
{See D.I. 51 at 8) In that case,the Delaware Supreme Court made a passing reference to "the
elements of drug dealing under § 4753(2)." Kelley,222 A.3d at 1043. Because the court was
focused on the broader distinction between class C and class D felonies, it did not parse the
elements of§ 4753(2)like it did in the other cases cited above.

        By contrast, the government's reliance on Delaware cases considering doublejeopardy is
entirely proper. {See D.I. 53 at 1)("Delaware case law has consistently held in the double
jeopardy arena that the state can charge the possession of multiple controlled substances without
violating double jeopardy principles- meaning that the controlled substances must be
elements.") These cases could not have come out the way they did (generally, finding no
violation of double jeopardy)if the identities ofthe controlled substances at issue were means as
opposed to elements ofthe offenses charged.
 Case 1:21-cr-00038-LPS Document 54 Filed 03/08/22 Page 7 of 10 PageID #: 377




ofthe drug is necessarily an element ofthe crime; that fact alone does not, however, definitively

establish that the identity ofthe drug is just a means of committing the offense. As the

government correctly states,"[t]he Court in Mathis did not rule that elements must have different

punishments." (D.I. 50 at 5)

           7.   With regard to step two,the Supreme Court has further explained that "ifa

statutory list is drafted to offer illustrative examples,then it includes only a crime's means of

commission." Mathis, 136 S. Ct. at 2256(internal quotation marks omitted). Here,the drugs

listed in § 4751C(4)are notjust "illustrative examples" of ways in which § 4753(1) may be

violated. Instead, § 4751C(4)lists the only options for weights of certain substances that qualify

as Tier 2 quantities that may be used to convict someone of violating § 4753(1). See, e.g.,

United States v. Henderson,841 F.3d 623,630(3d Cir. 2016)(explaining that sex crimes in

certain Maryland statute were means because list was "non-exhaustive"). Thus, again, the

statutory language is not definitively "means" language and,to the contrary, appears to be

"elements" language. At bottom,the statutory langiiage supports a conclusion that the identity

ofthe controlled substance in § 4753(1)is an element and not a means of committing the

offense.


           8. In any event, even ifthe first two steps ofthe analysis did not resolve the issue,

the third step again leads to the conclusion that the identity ofthe drug is an element ofthe

offense of which Jackson was convicted. This is clear firom the documents the Court is

permitted to consider. See Mathis, 136 S. Ct. at 2256-57. That record establishes that Jackson

was charged with and pled guilty to dealing heroin in a Tier 3 quantity,in violation of 16 Del. C.

§ 4753(1). (D.I. 47-4)(plea agreement) If heroin were just one of many means for committing
 Case 1:21-cr-00038-LPS Document 54 Filed 03/08/22 Page 8 of 10 PageID #: 378




the generic crime of possession with intent to deliver under § 4753(1),then Jackson's plea

agreement would not have specified that his offense involved heroin. Moreover,the Delaware

Superior Court's modeljury instructions for § 4753(1)list the identity ofthe drug as the first

element ofthe crime that the government must prove beyond a reasonable doubt. (D.I. 50 Ex.

A)("In order to find Defendant guilty ofthis charge, you must find that the State has proved the

following elements beyond a reasonable doubt: 1. The substance possessed was [drug]....")

Jackson argues that the Third Circuit has "criticized the use ofjury instructions to answer the

question of whether a specific controlled substance is a means or an element." (D.I. 52 at 4)

(citing Hillocks v. Attorney General,934 F.3d 332(3d Cir. 2019)) In Hillocks, however,the

government's argument regarding jury instructions was inconsistent with an earlier Third Circuit

decision. See 934 F.3d at 342-43. There is no such inconsistency here. Moreover, under the

relevantjury instructions in/fiV/ocfo', the judge could allow the jurors to choose between

different facts as the basis for their verdict. See id. at 343. Here,the modeljury instmctions

for § 4753(1) appear to require the government to prove to all the jurors that the defendant

possessed a particular drug, notjust one of multiple possible drugs. (See D.I. 50 Ex. A)^

          9. The Court's conclusion that § 4753(1)is divisible by drug type is further

supported by Henderson. In Henderson, 841 F.3d at 625,the Third Circuit held that

Pennsylvania's controlled substances statute is divisible by drug type for purposes of




        ^ Jackson relies on Patterson v. State, 925 A.2d 504(Del. 2007),for the proposition that
"[t]he identity of[the] controlled substance appears as a means of committing the criminal
offense" because the government need not prove the identity ofthe controlled substance. (See
D.I. 52 at 1-2) The Delaware modeljury instructions belie Jackson's premise regarding what
the government must prove.
 Case 1:21-cr-00038-LPS Document 54 Filed 03/08/22 Page 9 of 10 PageID #: 379




detennming whether a violation qualifies as a "serious drug offense" under the Armed Career

Criminal Act.'' The Pennsylvania statute prohibits certain activities with respect to "Schedule I

or II" drugs, as defined in a related statutory provision. Id. at 626-27. Applying the three-step

framework from Mathis, the Third Circuit first noted that decisions ofthe Pennsylvania Superior

Court treat the identity ofthe drug as an element ofthe crime. See id. at 628-29. Next,the

Third Circuit explained that, by cross-referencing Schedule I and II, the language ofthe statute

itself creates "several alternative elements,""not separate means of commission." Id. at 630.

Hence,the Pennsylvania statute provides a "clear answer" to the elements-or-means question

because it "provides an exhaustive list of all specific controlled substances" and "does not

attempt to illustrate the different means ofcarrying out the offense - i.e., the countless ways

people may manufacture, distribute, or possess the specified controlled substances." Id. at 630-

31. Lastly,the Third Circuit noted that the docxunents in the record confirmed that the

defendant was charged with and convicted of possessing a particular drug (heroin). See id. at

631-32. For all the reasons explained above,the Third Circuit's reasoning in Henderson applies

here and supports the Court's conclusions.'


       ^ See also United States v. Miller,480 F. Supp. 3d 614,618 n.3(M.D.Pa. 2020)
("Because [35 Pa. Stat. Ann. §]780-113(a)(30)is divisible by drug type, we reject [the
defendant]'s broader argument that a mismatch between the state and federal schedules renders
Section 780-113(a)(30)- as a whole-categorically overbroad.").

      'The Court acknowledges the Second Circuit has held that a provision in New York's
controlled substances statute is not divisible by drug type, so a violation of it cannot qualify as an
"aggravated felony" that might bar someone from seeking cancellation ofremoval and asylum
under the immigration laws. See Harbin v. Sessions, 860 F.3d 58,61 (2d Cir. 2017); see also
United States v. Townsend,897 F.3d 66,74(2d Cir. 2018)(reaffirming indivisibility ofNew
York statute in context of sentencing enhancement). Unlike the Third Circuit decisions cited in
this Memorandum Order, Harbin and Townsend are not bmdmg on this Court(even assuming
the New York statute is fairly analogous to the Delaware statute).
Case 1:21-cr-00038-LPS Document 54 Filed 03/08/22 Page 10 of 10 PageID #: 380




          10. Because Delaware's controlled substances statute is divisible by drug type,the

Court applies the modified categorical approach to determine whether Jackson's conviction

imder the Delaware statute qualifies as a controlled substance offense under U.S.S.G.

§§ 4Bl.l(a)and 4B1.2(b). See Descamps,570 U.S. at 257(explaining modified categorical

approach). Having undertaken this analysis, the Court concludes that Jackson's predicate

conviction rmder 16 Del. C.§ 4753(1)is no broader than the Guidelines' definition of a generic

controlled substance offense. In arguing the opposite, Jackson points to(among other things)a

"catch all" provision in § 4751C(4)(h), which criniinalizes conduct involving "substance[s] as

described in § 4714,""designer drug[s] as described in § 4701(9)," and "any mixture" containing

any ofthose substances. (See D.I. 42 at 5; Feb. 11,2022 Tr. at 10) Jackson was not, however,

charged with and convicted of possessing a designer drug or otherwise violating this "catch all"

provision. (See D.I. 47-4) Jackson was charged with and pled guilty to possessing heroin with

the intent to deliver it, an offense which is no broader than a generic controlled substance

offense. Thus, Jackson's overbreadth argument lacks merit.

          11. In svun, Jackson's argxunents do not provide a meritorious basis for his objections

to the presentence investigation report. Because possession with intent to deliver heroin under

16 Del. C.§ 4753(1)(2017)is a "controlled substance offense" within the meaning ofthe U.S.

Sentencing Guidelines, Jackson's PSR properly determined that Jackson qualifies as a career

offender. He will be sentenced as such.




March 8,2022                                          HONORABLE LEONARD P. STARK
Wilmington, Delaware                                  UNITED STATES DISTRICT JUDGE


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