Government’s Memorandum in Support of Objection to Base Offense Level in PSR — United States v. Akee Yamire Miller, No. 3:CR-21-150 (Dkt. 35, M.D. Pa.)
Summary
The U.S. Attorney's Office for the Middle District of Pennsylvania objects to the presentence report's base offense level of 38 for Akee Yamire Miller and argues for 43. Miller pleaded guilty on June 7, 2021 to distributing fluorofentanyl on February 17, 2021, when four pills were sold for $100 in Wilkes-Barre to Michaelena Kowalczyk, who took one and died. The probation officer declined to apply level 43 because no Information of Prior Conviction under 21 U.S.C. § 851 was filed and the prior convictions were not in the plea agreement or charge. The government answers that a § 851 information only raises statutory penalties, here from a 20-year mandatory minimum to life, and that U.S.S.G. § 2D1.1(a)(1) needs only a prior felony drug offense, citing United States v. Johnson (6th Cir. 2013) and Miller's Luzerne County drug convictions. The memorandum is dated November 27, 2023.
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA : No. 3:CR-21-150
:
v. : (Judge Mariani)
:
AKEE YAMIRE MILLER, : (Electronically Filed)
Defendant. :
GOVERNMENT’S MEMORANDUM IN SUPPORT OF
OBJECTION TO BASE OFFENSE LEVEL IN PSR
I. Background
On June 7, 2021, the defendant appeared before the Court and pleaded
guilty to a one-count criminal information charging him with a violation of 21
U.S.C. § 841(a)(1), § 841(b)(1)(C), and 18 U.S.C. §2. (Doc. 2). The defendant
entered his guilty plea pursuant to the terms of a written plea agreement.
(Doc. 3). The defendant admitted that on or about February 17, 2021, he
knowingly, intentionally and unlawfully distributed a mixture and substance
containing a detectable amount of fluorofentanyl, a Schedule I controlled
substance analogue as defined in 21 U.S.C. § 802(32), with intent for human
consumption as provided in 21 U.S.C. § 813, and death and serious bodily
injury of a person resulted from the use of such substance. At the time the
plea was entered, the defendant admitted before this Court that on February
17, 2021, he met with Krystina Shumway and Michaelena Kowalczyk at
1
approximately 5:45 p.m. at a small store located on Park Avenue in Wilkes-
Barre, at which time the defendant sold four pills to Michaelena Kowalczyk
for $100. The defendant admitted that Michaelena thereafter ingested one of
the pills and died. The defendant admitted that but for his unlawful drug
sale of fluorofentanyl on February 17, 2021, Michaelena Kowalczyk would not
have died. Her body was found inside her vehicle on February 18, 2021.
Following entry of the defendant’s guilty plea, a presentence report was
prepared. That report concludes that the defendant’s base offense level is 38,
pursuant to U.S.S.G. §2D1.1(a)(1). 1 The Government objects to a base offense
level of 38. It is the Government’s position that the appropriate base offense
level to be applied to the defendant’s offense of conviction is 43. The
Government’s position is based on the defendant’s admissions of guilt and his
prior similar felony drug offenses. Despite the November 1, 2023
1 The First Step Act amended four of the six penalty provisions
referenced in §2D1.1(a)(1) and, for those amended provisions, the term
“similar offense” is over-inclusive, because it includes drug offenses that do
not meet the definition of “serious drug felony,” and under-inclusive, because
it fails to account for a prior “serious violent felony.” The amendment divides
§2D1.1(a)(1) into two subparagraphs, (A) and (B). Subparagraph (A), which
references the four statutory provisions amended by the First Step Act,
replaces the term “similar offense” with “serious drug felony or serious
violent felony.” Subparagraph (B), which references the two provisions that
were not amended, replaces the term “similar offense” with “felony drug
offense.” The amendment also amends §2D1.1(a)(3), by replacing the term
“similar offense” with “felony drug offense,” for consistency with the
terminology used in §2D1.1(a)(1). The effective date of this amendment is
November 1, 2023.
2
amendments to §2D1.1(a) as noted in fn 1, the defendant’s criminal history
and offense of conviction still correctly place him at a base offense level of 43.
Notably, the PSR correctly concludes that the defendant is a career
offender pursuant to U.S.S.G. §4B1.1(b) based upon two prior felony drug
offense convictions detailed in paragraphs 33, 34, and 37, thereby exposing
the defendant to greater punishment under the guidelines. PSR ¶41. The
defendant’s criminal history category, therefore, is properly calculated at VI.
The PSR concludes that the defendant’s guideline sentencing range is 292-
235, after acceptance of responsibility. This range is incorrectly premised on
a base offense level of 38. The assignment of 38 in the PSR is incorrect and
not legally supported.
II. Argument
The probation officer disagrees with the Government’s position and
states the following in an addendum to the PSR:
The probation officer agrees that the defendant has prior
convictions for similar offenses; however, USSG §2D1.1(a)(1)
states that the base offense level is 43 if the defendant was
convicted under 21 USC § 841(b)(1)(C) and the offense of
conviction establishes that death or serious bodily injury resulted
from the use of the substances and that the defendant committed
the offense after one or more prior convictions for a similar
offense.
Because there was no filing of an Information of Prior Conviction
pursuant to 21 USC § 851(a), a stipulation in the plea agreement,
or a reference to a prior conviction in the Indictment, the
probation officer does not believe that the offense of conviction
3
has established that the defendant has a prior conviction for a
similar offense.
(Doc. 20)
First, it is unclear what the probation officer means when he states
that he does not believe that the “offense of conviction has established that
the defendant has a prior conviction for a similar offense.” In fact, the
Government takes issue with this statement. To the extent this is a policy
position taken by the federal probation office, it does not comport with the
law. To the extent the probation officer believes that any prior felony drug
conviction must exactly match the “offense of conviction,” (death resulting
from an unlawful distribution of a controlled substance), he is wrong. The
defendant need only have sustained at least one prior felony drug offense
AND the “offense of conviction” establishes that death or serious bodily
injury resulted….., to warrant a base offense level of 43.
Moreover, to the extent the probation officer claims that an
“Information of Prior Convictions” pursuant to 21 U.S.C. §851 must be filed
in order to establish that the defendant has a prior conviction for a similar
offense pursuant to §2D1.1(a), his claim is misplaced and legally incorrect.
Section 2D1.1(a) does NOT require the filing of an §851 Information for the
section to be properly applied to the defendant’s conduct. That is not the
purpose of an § 851 Information. Section 851 serves only to ensure that
4
defendants are provided certain procedural safeguards before receiving an
enhanced mandatory minimum or maximum statutory sentence on the
basis of a prior conviction. In fact, had the Government filed an § 851
Information in this case, the defendant would be facing mandatory life
imprisonment based upon his prior felony drug offenses. (See 21 U.S.C.
§841(b)(1)(C)…. if any person commits such a violation after a prior
conviction for a felony drug offense has become final, such person shall be
sentenced …… and if death or serious bodily injury results from the use of
such substance shall be sentenced to life imprisonment). The § 851
Information in the instant case, had it been filed, would have increased the
defendant’s statutory mandatory minimum sentence from 20 years to life.
The Government did not file an §851 Information because the Government
did not intend to increase the mandatory minimum term of 20 years
imprisonment to mandatory life imprisonment. The Government intended
to rely on the proper application of the sentencing guidelines and
§2D1.1(a)(1)’s base offense level of 43 in order to meet the ends of justice in
this case.
It is important to note that an § 851 Information serves only as notice
to the defendant under the statutory structure of Title 21 that the
Government intends to increase the statutory penalties associated with the
defendant’s crimes and has no applicability to the guidelines when no
5
statutory penalties are increased, nor has any authority been identified in
support of an §851 notice requirement pursuant to §2D1.1(a)(1)’s guideline
base offense levels. The Government is unaware of any such authority.
Application of the appropriate base offense level in this case does not impact
the mandatory minimum or maximum statutory penalty for the crime to
which the defendant plead guilty. As such, the statutory penalties are not
increased by application of the appropriate base offense level. Moreover, an
§851 Information plays no role in establishing “a similar offense,” or now a
similar “felony drug offense,” under the sentencing guideline §2D1.1(a)(1).
By way of example, an §851 Information is not required in order to
implicate a defendant’s career offender designation under the guidelines
pursuant to U.S.S.G. §4B1.1, which is a designation that subjects a defendant
to greater punishment under the guidelines. Indeed, a career offender
designation subjects a defendant to an increased guidelines score with no
requirement for filing of an §851 Information. The defendant has been
properly designated a career offender in this case without the filing of an
§851 Information. PSR ¶41. If in fact an §851 Information is filed in a career
offender situation, it would serve as notice that the maximum statutory
penalty could increase, but there is no requirement for an §851 Information
be filed for a career offender designation. Nor does an §851 Information have
6
to be included in a plea agreement or in a charging document. That is simply
not the law.
Therefore, the probation officer’s reference to an §851 Information in
this case is misplaced and legally incorrect. The same is true regarding any
claim that for application of §2D1.1(a)(1)’s base offense level of 43, the
defendant’s prior felony drug convictions must have been included in the plea
agreement or charging document. That is simply not the law.
The law requires that for application of a base offense of 43 pursuant to
§2D1.1(a)(1)(B), the defendant must have committed the instant offense of
conviction (here, drug distribution resulting in death) after one or more prior
convictions for a similar offense (now felony drug offense). That is all the law
requires. This defendant has multiple prior felony drug offenses as set forth
in the PSR and in his designation as a career offender. PSR ¶ 41. With a
career offender designation, the PSR and the Addendum both acknowledge
that the defendant sustained at least two prior felony drug offenses prior to
the instant commission of the offense of conviction. Again, to the extent the
probation officer claims that any prior felony drug offense must exactly match
the offense of conviction, i.e. resulting in death, he is wrong. Any such claim
has been consistently rejected by federal courts, including this Court. 2
2 See, e.g. United States v. Zayas, MDPA 3:cr-16-222 (BOL = 43 similar
offense(s) did not involve prior death); United States v. Jackson MDPA 3:cr-
7
This argument was rejected by the Sixth Circuit in United States v.
Johnson which held that "the term 'similar offense' is synonymous with the
term "felony drug offense" for purposes of interpreting U.S.S.G. §2D1.1(a)(1)".
706 F.3d 728,733 (6th Cir. 2013). The Sixth Circuit reasoned:
Notably, although USSG § 2D1.1(a)(1) uses the term "similar
drug offense" and 21 U.S.C. § 841(b)(1)(C) uses the term "felony
drug offense," the guideline and statute mirror one another in
several respects. The statute provides that a defendant will be
subject to a maximum statutory sentence of thirty years if the
instant controlled substance offense was committed "after a prior
conviction for a felony drug offense has become final." 21 U.S.C. §
841(b)(1)(C). However, "if death or serious bodily injury results
from the use of such substance," the defendant will face a
sentence of life imprisonment. Id. Thus, both the guideline
provision and the statute contemplate sentencing a defendant to
a term of life imprisonment if he has committed a controlled
substance offense that resulted in death or serious bodily injury
and has a prior conviction. In fact, USSG § 2D1.1(a)(1) merely
reinforces the enhanced penalty mandated by statute. Taking
into account the plain language of both the guideline provision
and the statute, we conclude that the Sentencing Commission
intended the term "similar offense" to be synonymous with the
term "felony drug offense."
Id. at 731.
The Government also notes that in Johnson, the Court rejected the
defendant’s claim that the Government needed to file an §851 Information for
a base offense level of 43. 706 F.3d at 732. The Court stated:
20-291 (BOL = 43 similar offense(s) did not involve prior death); United
States v. Rosario, MDPA 3:-cr-21-206 (BOL=43 similar offense(s) did not
involve prior death); United States v. Beckford, MDPA 3:cr-22-061 (BOL = 43
similar offense(s) did not involve prior death).
8
Section 851 ensures that defendants are provided certain
procedural safeguards before receiving a mandatory sentence
enhancement on the basis of a prior conviction. Once those
requirements have been satisfied, those defendants are subject to
an enhanced sentence. Johnson offers no authority to the
contrary. Here, the only reason Johnson was not subject to the
statutory mandatory minimum sentence was because the
Government did not file an information pursuant to § 851, in
accordance with the terms of Johnson's plea agreement.
Notwithstanding the terms of Johnson's plea agreement, the
district court was still permitted to take into account Johnson's
prior felony drug conviction when determining whether to apply
USSG § 2D1.1(a)(1).
Id. (emphasis added).
Similarly, the Fourth Circuit explained in United States v. Fisher that:
the Guidelines do not require that the offenses involve identical
controlled substances, but only that the offenses be similar. See
USSG § 2D1.1(a)(1) ("defendant committed the offense after one
or more prior convictions for a similar offense"). Next, the
offenses are similar in that the intent in both involved
distribution of controlled substances. See United States v.
Johnson, 706 F.3d 728, 733 (6th Cir. 2013) (similar offense is
synonymous with "felony drug offense"); United States v. Westry,
524 F.3d 1198 (11th Cir. 2008) (conviction for possession of
pentazocine similar offense to conspiracy to possess with intent to
distribute several types of controlled substances). Finally, Fisher
alleges that the marijuana conviction did not involve death. The
fact that the prior conviction did not involve serious bodily injury
or death is irrelevant because 21 U.S.C. § 841(a) (2012)
prescribes the unlawful act and 21 U.S.C. § 841(b)(1)(C) (2012)
only prescribes the penalty, which takes into consideration
whether serious bodily injury or death resulted from the unlawful
act. We therefore conclude that the court did not err in applying
the enhancement in USSG § 2D1 .1 (a)(1 ).
9
683 Fed. App’x 214, 215 (4th Cir. 2017). 3
Johnson’s primary holding is that “the term ‘similar offense’ is
synonymous with the term ‘felony drug offense’” as used in 21 U.S.C.
§841(b)(1)(C). Johnson, 706 F3d at 733. As detailed in fn 1 above, the
Guidelines Amendment, effective November 1, 2023, amended §2D1.1(a)(1)
by replacing the term “similar offense” with “felony drug offense,” in
Subparagraph (B) of §2D1.1(a)(1).
The defendant, Akee Miller, has at least two prior felony drug offenses
and only one is necessary to place him at a base offense level of 43.
The defendant was convicted of Conspiracy to Manufacture, Delivery or
Possession with Intent to Manufacture or Deliver Controlled Substances (18 §
903 – felony), as well as a substantive count of Manufacture, Delivery or
3 Similar to Johnson, no §851 Information was filed in Fisher. 683
Fed. App’x 214 (2017). See also, United States v. Sica, 676 Fed. App’x 81
(2017), no plain error in applying sentencing guideline imposing base offense
level of 43 for defendant on ground that he had prior convictions for similar
offense, even though he did not plead to the substantive prior-felony death-
results crime and no §851 Information filed; United States v. Stevens, 2022
WL 1297091 (E.D. Kentucky, 2022) (Federal Probation Officer responded in
addendum to PSR that defendant’s prior 2000 conviction for first degree
possession of a controlled substance (crack cocaine), a class D felony under
Kentucky law, qualified as a “similar offense” for purposes of §2D1.1(a)(1).
The Court agreed that Johnson was “on point” because “similar offense” is
synonymous with “felony drug offense” and defendant had prior drug offense
and no §851 Information filed; United States v. Carrington, 2023 WL
1990529 (E.D. VA 2023) (defendant’s base offense level properly calculated at
43 even though Virginia offense not precise match, it is nonetheless “similar”
to the federal statute and no §851 Information filed.
10
Possession with Intent to Manufacture or Deliver Controlled Substances (35 §
780-113 §§A30 – felony) in Luzerne County, Court of Common Pleas, Wilkes-
Barre, Pennsylvania in 2017 (Case Nos. CP-40-CR-2770 and 2771 - 2017).
On May 23, 2016, the defendant was arrested and later convicted of
trafficking in heroin, a Schedule I controlled substance and a felony drug
offense. He was again arrested on May 30, 2017 and later convicted of
trafficking in marijuana, a Schedule I controlled substance, as well as a
firearm offense. The defendant was sentenced for both drug trafficking
offenses on the same date, July 17, 2018, to a term of 11 months and 29 days
to 23 months and 28 days, followed by 7 years of probation. He subsequently
violated his probationary term and was twice resentenced on both crimes.
Both of these 2017 drug convictions carry statutory maximums greater than
1 year imprisonment in Pennsylvania and qualify as felony drug offenses.
See 35 P.S. Sec. 780-113(f)(1).
The defendant was again convicted of Manufacture, Delivery or
Possession with Intent to Manufacture or Deliver Controlled Substances (35 §
780-113 §§A30 – felony) in Luzerne County, Court of Common Pleas, Wilkes-
Barre, Pennsylvania in 2017 (Case No. CP-40-CR-2236-2019). Regarding this
conviction, the defendant was arrested on October 11, 2018 after selling
approximately 30 grams of fentanyl, a Schedule II controlled substance, in
Wilkes-Barre for $4,000. The defendant was sentenced for this felony drug
11
offense on May 5, 2021 to a term of 48 months in the Intermediate
Punishment Program (IPP) with the first 24 months on house arrest. The
defendant violated the terms of IPP and was revoked multiple times
thereafter. This conviction, however, involving the trafficking in fentanyl
carries a statutory maximum sentence of more than one year in prison in
Pennsylvania and qualifies as a felony drug offense. See 35 P.S. Sec. 780-
113(f)(1).
For purposes of the U.S.S.G., “felony drug offense” has the meaning
given that term in 21 U.S.C. §802.
“Felony drug offense” means:
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
county that prohibits or restricts conduct relating to narcotic
drugs, marijuana, anabolic steroids, or depressant or stimulant
substances.
21 U.S.C. § 802(44). (emphasis added). Marijuana is specifically articulated. 4
4 “Narcotic drugs” is defined broadly in §802(17) to include cocaine
and heroin and related compounds and derivatives:
(17) The term “narcotic drug” means any of the following whether
produced directly or indirectly by extraction from substances of vegetable
origin, or independently by means of chemical synthesis, or by a combination
of extraction and chemical synthesis:
(A) Opium, opiates, derivatives of opium and opiates, including
their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers,
whenever the existence of such isomers, esters, ethers, and salts is possible
within the specific chemical designation.
12
Both of the defendant’s felony drug offenses discussed above (heroin
and marijuana) qualify as “felony drug offenses” and only one is necessary for
proper application of U.S.S.G. §2D1.1(a)(1). The defendant’s Pennsylvania
drug trafficking convictions are punishable by more than a year “under any
law of the United States” and the Pennsylvania statutes prohibit “conduct
relating to narcotic drugs, marijuana, ……”
(B) Poppy straw and concentrate of poppy straw.. . .
(C) Coca leaves, except coca leaves and extracts of coca leaves
from which cocaine, ecgonine, and derivatives of ecgonine or their salts
have been removed.
(D) Cocaine, its salts, optical and geometric isomers, and salts
of isomers.
(E) Ecgonine, its derivatives, their salts, isomers, and salts of
isomers.
(F) Any compound, mixture, or preparation which contains any
quantity of any of the substances referred to in subparagraphs (A)
through (E).
21 U.S.C. §802(17).
13
III. Conclusion
For all of the above stated reasons, the defendant’s base offense level is
properly calculated at 43, prior to acceptance of responsibility, and the PSR
should reflect the same.
Respectfully submitted,
GERARD M. KARAM
United States Attorney
/s/ Michelle L. Olshefski
MICHELLE L. OLSHEFKI
Assistant U.S. Attorney
Date: November 27, 2023
14
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA : No. 3:CR-21-150
:
v. : (Judge Mariani)
:
AKEE YAMIRE MILLER, : (Electronically Filed)
Defendant. :
CERTIFICATE OF SERVICE
The undersigned hereby certifies that she is an employee in the Office
of the United States Attorney for the Middle District of Pennsylvania and is
a person of such age and discretion as to be competent to serve papers.
That on November 27, 2023, she served a copy of the attached:
GOVERNMENT’S MEMORANDUM IN SUPPORT OF
OBJECTION TO BASE OFFENSE LEVEL IN PSR
by electronic filing on the following:
James Scanlon, Esquire
/s/ Michelle Olshefski
Michelle Olshefski
Assistant U.S. Attorney
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