United States v. Frierson

United States Court of Appeals
for the Fifth Circuit

No. 19-31048

United States of America,

Plaintiff—Appellee,

versus

Glenn Frierson,

Defendant—Appellant.

Appeal from the United States
District Court
for the Western District of Louisiana
USDC No. 5:19-CR-00061-1

Before Elrod, Duncan, and Wilson, Circuit Judges.
Jennifer Walker Elrod, Circuit Judge:
Glenn Frierson appeals his concurrent, within-Guidelines sentences
of 120 months for being a felon in possession of a firearm and 151 months for
possessing with intent to distribute a controlled substance. He argues the
district court erroneously applied U.S.S.G. § 4B1.1(a)’s career offender
sentence enhancement because the Louisiana statute under which he was
previously convicted, La. R.S. § 40:967, is indivisible and, thus, broader than
the “generic crime” as it is defined by federal law.
United States Court of Appeals
Fifth Circuit
FILED
November 11, 2020

Lyle W. Cayce
Clerk
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Louisiana R.S. § 40:967 is divisible and, under the modified
categorical approach, sufficiently narrow to serve as a predicate for sentence
enhancement under § 4B1.1(a). Therefore, we AFFIRM the district court’s
application of the career offender sentence enhancement.
I.
This case arises out of a May 3, 2018 search of Glenn Frierson’s place
of business in which police found and seized a .40 caliber firearm,
ammunition, 28 grams of methamphetamine, and a scale. Frierson
subsequently pleaded guilty to being a felon in possession of a firearm and
possessing methamphetamine with intent to distribute.
Nine years prior to these events, Frierson was convicted for
possession with intent to distribute cocaine in Louisiana under La. R.S.
§ 40:967(A). This conviction, along with another not at issue in this appeal,
served as the basis for the “career offender” enhancement that extended the
advisory range of Frierson’s sentence from a range of 37–46 months to a
range of 151–188 months.
Frierson objected to the presentence report’s determination that he
was a “career offender” under U.S.S.G. § 4B1.1(a). The district court
overruled the objection and sentenced him to 151 months, the shortest
duration suggested by the advisory Guidelines, for the drug charge to run
concurrently with a statutory maximum 120-month sentence for the firearm
charge. Frierson appealed.
II.
“We review a district court’s determination that a defendant is a
career offender under U.S.S.G. § 4B1.1 de novo.” United States v. Akins, 746
F.3d 590, 611 (5th Cir. 2014).

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III.
Under U.S.S.G. § 4B1.1(a), a defendant is a career offender if three
criteria are met:
(1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a crime of
violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.
The third criterion is at issue here. Frierson does not contest one of
his two prior felony convictions. However, he asserts that his conviction for
possession with intent to distribute a Schedule II controlled substance (in this
instance, cocaine) under La. R.S. § 40:967(A) does not qualify as a predicate
offense because, at the time of his conviction, § 40:967(A) was broader than
the corresponding generic offense, 21 U.S.C. § 841(a). Specifically, Frierson
argues that § 841(a) did not prohibit the distribution of a “controlled
substance analogue” while the Louisiana statute did. He also argues that
§ 841(a) did not include certain substances contained in the Louisiana
statute. Frierson’s first argument could be persuasive if § 40:967(A) is , as he
asserts, indivisible.
1

1
Frierson’s second argument, that Louisiana’s statute is facially broader than its
federal counterpart because Carisoprodol is regulated by the State but not federally
controlled, fails because Carisoprodol, though now listed on Schedule II, was listed on
Schedule IV at the time of Frierson’s 2009 conviction and governed by a different statute.
See United States v. Craig, 823 F. App’x 231 (5th Cir. 2020). Although unpublished
opinions issued on or after January 1, 1996, are not precedential, they may be considered as
persuasive authority. Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006).
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A.
The Supreme Court has prescribed that a court attempting to
determine the divisibility of a state statute must first answer the threshold
inquiry of whether the statute sets forth alternative elements or merely
alternative means of proving a single element. Mathis v. United States, 136
S. Ct. 2243, 2256 (2016).
2
Elements must necessarily be found by a jury (or
admitted by the defendant) in order to convict while means are facts not
necessary to support a conviction. Id. at 2255; United States v. Howell, 838
F.3d 489, 497 (5th Cir. 2016) (explaining that, after Mathis, “[t]he test to
distinguish means from elements is whether a jury must agree”).
Where the state statute is comprised of multiple alternative elements,
it may be divided, and the component elements that served as the basis of the
prior conviction can be compared to those in the “generic crime” in federal
law. Mathis, 136 S. Ct. at 2256. If those limited elements from the state
statute are narrower than or equivalent to the elements that comprise the
analogous federal law, the prior conviction under the state statute is a valid
predicate for sentence enhancement. United States v. Sanchez-Rodriguez, 830
F.3d 168, 172 (5th Cir. 2016); United States v. Schofield, 802 F.3d 722, 728
(5th Cir. 2015).
The Louisiana Supreme Court has not spoken to whether § 40:967 is
comprised of “elements” or “means.” However, the Louisiana First Circuit
Court of Appeal has stated that to convict a defendant under § 40:967(A)(1),
“the state must prove the exact identity of the controlled dangerous
substance [a]s an essential element of the crime of distribution thereof.” State
v. Jordan, No. 2014 KA 1732, 2015 WL 5968258, 1, 4 (La. Ct. App. 2015)

2
This court has held that Mathis generally applies to the Federal Sentencing
Guidelines. United States v. Hinkle, 832 F.3d 569, 574 & nn.25–26 (5th Cir. 2016).
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(unpublished) (emphasis added). Because the type of controlled substance
is essential to the crime’s legal definition, it is an essential element of the
offense and thus the statute is elements-based. Id. at 4; see Howell, 838 F.3d
at 497.
We do not, however, rely entirely on the Louisiana appellate court’s
holding. The Supreme Court also provided in Mathis that a statute can often,
on its face, resolve the elements-or-means inquiry. 136 S. Ct. at 2256. For
instance, “[i]f statutory alternatives carry different punishments . . . they
must be elements[,]” and the statute is divisible. Id. On the other hand, if a
statute merely lists “illustrative examples,” these examples are only means
by which one can commit the offense, and the statute is not divisible. Id.
The Fourth Circuit and the Eighth Circuit have employed this same
reasoning from Mathis to determine state drug statute divisibility. See, e.g.,
United States v. Vanoy, 957 F.3d 865, 868 (8th Cir. 2020) (holding Virginia’s
drug statute was divisible because the statute shows that different drug types
and quantities have different punishments); Bah v. Barr, 950 F.3d 203, 207–
08 (4th Cir. 2020) (same); United States v. Ford, 888 F.3d 922, 930 (8th Cir.
2018) (determining the same of Iowa’s drug statute). We join our sister
circuits in concluding that, where a state’s controlled substance statute
prescribes different punishments depending on the type and quantity of drug,
the type of substance is an element, and the statute is, therefore, divisible.
La. R.S. § 40:967(A) criminalizes activities involving “Schedule II”
substances. La. R.S. § 40:964 includes seven subsections listing over 75
drugs that are classified as “Schedule II.” Frierson argues that, while
“Schedule II” is an express element of the statute, § 40:964 merely lists
alternative means of violating § 40:967(A).
However, § 40:967(B) goes on to prescribe different penalties for
different drugs and different activities with those drugs. See also State v.
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Smith, 766 So. 2d 501, 516 (La. 2000) (noting the statute provides for
differing punishments depending on the drug involved). For instance, at the
time of Frierson’s conviction, § 40:967(B) provided that a conviction for
cocaine possession was punishable by a sentence of 2–30 years while
someone convicted of producing or manufacturing methamphetamine could
be punished with a sentence of 10-30 years.
“[A] statute should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous, void or
insignificant.” Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, 399 (5th Cir.
2014) (quotations omitted). Section 40:967(A)’s provisions are only
effective if read in conjunction with both § 40:964 and § 40:967(B).
Therefore, we read them together here as well. The fact that there are
different punishments for different drugs and activities evidences that the
types of drugs in Schedule II are elements and not merely a list of illustrative
means. Thus, under Mathis, § 40.967(A) is divisible.
B.
Where a statute is divisible, we employ the “modified categorical
approach.” United States v. Reyes-Contreras, 910 F.3d 169, 174 (5th Cir.
2018) (en banc). This approach “permits a court to look at a limited class of
documents from the record of a prior conviction to determine what crime,
with what elements, a defendant was convicted of before comparing that
crime’s elements to those of the generic offense.” Mathis, 136 S. Ct. at 2245–
46; see Shepard v. United States, 544 U.S. 13, 26 (2005); United States v.
Castillo-Morales, 507 F.3d 873, 876 (5th Cir. 2007) (“Shepard allowed courts
to examine certain court documents to locate elements of the offense.”).
Applying this approach, the relevant documents here show that
Frierson was previously convicted of possession with intent to distribute
cocaine under § 40:967(A)(1). Taken as a whole, § 40:967(A)(1) may include
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provisions not explicitly found in the corresponding federal statute.
However, thus divided and limited to only these elements for which he was
convicted, Frierson’s offense consists of elements sufficiently narrow to fall
within the scope of the elements in the “generic crime,” § 841(a).
3
Likewise,
an offense under § 841(a) satisfies the definition of a “controlled substance
offense” as defined by U.S.S.G. § 4B1.2(b).
4
Therefore, Frierson’s prior
offense under La. R.S. § 40:967(A)(1) necessarily falls within § 4B1.2(b)’s
definition as well. This supports the application of the career offender
sentence enhancement under U.S.S.G. § 4B1.1.
IV.
Because the drugs listed in Schedule II are elements and not means,
La. R.S. § 40:967(A) is divisible. Applying the modified categorical
approach, § 40:967(A) constitutes a “controlled substance offense” under
U.S.S.G. § 4B1.2(b). Therefore, we AFFIRM the district court’s
determination that Frierson’s previous conviction was a valid predicate
offense for career offender sentence enhancement under § 4B1.1.

3
Section 841(a) prohibits, inter alia, possession with intent to distribute cocaine.
4
For purposes of career offender sentence enhancement under U.S.S.G. § 4B1.1,
“[t]he term ‘controlled substance offense’ means 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 a counterfeit substance) with
intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b).

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