USA v. Williams

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA CRIMINAL ACTION
VERSUS No. 24-194
FAUSTIN WILLIAMS SECTION I
ORDER AND REASONS
Before the Court is defendant Faustin Williams’s (“Williams”) first objection1
to the Presentence Investigative Report (“PSR”).2 The government filed a response3
in opposition. For the reasons that follow, the Court OVERRULES the objection.
I. BACKGROUND
On November 20, 2024, Williams pleaded guilty to counts one and two of a two-
count bill of information. Count one charged Williams with possession with intent to
distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Count two
charged Williams with possessing firearms as a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(8).
The PSR recommends a “Chapter Four Enhancement” pursuant to U.S.S.G.
§ 4B1.1 (“career offender enhancement”).4 The PSR states that the enhancement is
predicated on two prior state-level convictions for possession with intent to distribute
1 R. Doc. No. 57.
2 For the reasons stated infra notes 5 and 6 and the accompanying text, and note 12,
the Court need not address Williams’s first objection to the extent it concerns his 2007
conviction, nor his second objection, as they were resolved in the final Presentence
Report or are otherwise moot.
3 R. Doc. No. 59.
4 R. Doc. No. 69, at 8.
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cocaine, in violation of La. Rev. Stat. § 40:967, occurring on August 5, 2011 and May
14, 2019.5 The PSR also states that in 2007, Williams was convicted of attempted
possession with intent to distribute cocaine, but because the sentence for that
conviction was imposed more than fifteen years prior to the instant offense, pursuant
to § 4A1.2(e)(1), it was not considered when computing Williams’s criminal history.6
With the career offender enhancement, and a three-point reduction for
acceptance of responsibility, Williams’s offense level is 29 and his criminal history
category is VI.7 This results in a guideline range of 151 to 188 months as to count one
and 151 to 180 months as to count two.8 Without the career offender enhancement,
Williams would have an offense level of 25, a criminal history category of IV,9 and
each count would carry a guideline range of 84 to 105 months. See U.S.S.G. § 5A.
Williams objects to his § 4B1.1 career offender enhancement, arguing that his
2011 cocaine conviction in Louisiana no longer qualifies as a “controlled substance
offense” pursuant to § 4B1.2 because a 2015 change to the federal regulatory drug
Schedule II, outlining the cocaine-related substances criminalized pursuant to the
Controlled Substances Act (“CSA”), explicitly excluded the cocaine derivative
[123I]Ioflupane (“Ioflupane”).10 Williams contends that when applying the “categorical
5 Id. at 8, 42, 45.
6 Id. at 10, 27.
7 Id. at 8.
8 R. Doc. No. 68.
9 Without the enhancement for § 4B1.1, Williams’s eight criminal history points, R.
Doc. No. 69, at 8–13, result in a criminal history category of IV. See U.S.S.G. § 5A.
10 R. Doc. No. 57, at 1–2. See also Schedules of Controlled Substances: Removal of
[123I]Ioflupane From Schedule II of the Controlled Substances Act, 80 Fed. Reg.
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approach” to his 2011 conviction, the applicable Louisiana definition of cocaine-
related substances, La. Rev. Stat. § 40:964, Schedule IIA(4) (effective Aug. 15, 2010)
(“Louisiana Schedule II (2010)”), is broader than the current sentencing guideline
definition, 21 C.F.R. § 1308.12(b)(4) (effective Dec. 21, 2022) (“federal Schedule II”),
because the federal Schedule II explicitly excludes Ioflupane.11 In short, Williams’s
argument is that because Louisiana Schedule II (2010) criminalized a broader swath
of conduct than the current federal Schedule II, his 2011 conviction should not count
towards his career offender status, and therefore he does not qualify for a § 4B1.1
career offender enhancement.12
54717 (citing the Drug Enforcement Administration’s drug scheduling authority, as
delegated by the Attorney General pursuant to 21 U.S.C. § 811).
11 See id. Compare La. Rev. Stat. § 40:964, Schedule IIA(4) (effective Aug. 15, 2010)
(“Coca leaves, cocaine, ecgonine and any salt, isomer, salt of an isomer, compound,
derivative, or preparation of coca leaves, cocaine or ecgonine and any salt, isomer,
salt of an isomer, compound, derivative, or preparation thereof which is chemically
equivalent or identical with any of these substances, except that the substances shall
not include decocainized coca leaves or extraction of coca leaves, which extractions do
not contain cocaine or ecgonine.”), with 21 C.F.R. § 1308.12(b)(4) (“Coca leaves (9040)
and any salt, compound, derivative or preparation of coca leaves (including cocaine
(9041) and ecgonine (9180) and their salts, isomers, derivatives and salts of isomers
and derivatives), and any salt, compound, derivative, or preparation thereof which is
chemically equivalent or identical with any of these substances, except that the
substances shall not include …ioflupane.” (emphasis added)).
12 R. Doc. No. 57, at 1–2. Williams also objects to the inclusion of his 2007 conviction
as a “prior sentence” for the same reasons as his 2011 conviction. See R. Doc. No. 57,
at 1. The PSR already resolves this objection on other grounds, see R. Doc. No. 69, at
27, and this Court agrees with the probation officer’s finding that the 2007 offense
is time-barred from qualifying as a “prior sentence” for purposes of a career offender
enhancement. See U.S.S.G. § 4A1.2(e)(1)(counting as a prior sentence “[a]ny prior
sentence of imprisonment exceeding one year and one month that was imposed
within fifteen years of the defendant’s commencement of the instant offense [and]
. . . any prior sentence of imprisonment exceeding one year and one month,
whenever imposed, that resulted in the defendant being incarcerated during any
part of such fifteen-year period.”). Williams was paroled on November 21, 2007, for
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The government disagrees with Williams and argues that his 2011 conviction
qualifies as a controlled substance offense pursuant to § 4B1.2. The government
asserts that Williams must show a “realistic probability” that Louisiana would have
prosecuted offenses involving Ioflupane before this Court can find that Williams’s
2011 conviction does not qualify as a controlled substance offense.13 The government
states that because Williams has not provided this Court with any examples of
Louisiana prosecuting offenses involving Ioflupane, he has therefore failed to satisfy
the “realistic probability test.”14
II. LAW & ANALYSIS
To qualify as a career offender pursuant to U.S.S.G. § 4B1.1, among other
requirements not at issue here, Williams must have “two prior felony convictions of
either a crime of violence or a controlled substance offense.” Id. at § 4B1.1(a)(3). A
predicate controlled substance offense may not criminalize conduct broader than the
sentencing guidelines allow at sentencing for the present offense. United States v.
Minor, 121 F.4th 1085, 1089 (5th Cir. 2024). For the reasons stated below, Williams
his 2007 conviction. R. Doc. No. 69, at 10. The present offense commenced on or
about June 5, 2024, id. at 5, more than fifteen years from the date he was released
from incarceration for his 2007 conviction.
Similarly, this Court need not reach Williams’s second objection to counting his two
2019 cocaine offenses as two separate prior sentences. R. Doc. No. 57, at 3. The PSR
also resolved this objection in favor of Williams, with a recommendation to treat the
two offenses as just one sentence. R. Doc. No. 69, at 27. Regardless, whether the
2019 offenses count as either one or two sentences does not matter. Williams has
the two required sentences in either case because this Court finds that his 2011
conviction qualifies for purposes of the career offender enhancement. See infra p. 10.
13 R. Doc. No. 59, 5–6.
14 Id.
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failed to show a realistic probability that Louisiana would have prosecuted offenses
involving Ioflupane, conduct he argues that Louisiana Schedule II (2010)
criminalized more broadly than the present sentencing guidelines.
a. Application of the “Categorical Approach”
The federal sentencing guidelines do not explicitly define “controlled
substances.” As a result, courts look to the CSA definition in use at the time of
sentencing for the present offense.15 Minor, 121 F.4th at 1093. Therefore, only drugs
listed on the federal drug schedule at the time of sentencing qualify as “controlled
substances.” Id.
To determine whether the prior drug conviction falls within the sentencing
guidelines’ definition of a controlled substance offense, courts employ a “categorical
approach.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013). The “categorical approach”
“focus[es] solely on whether the elements of the [prior conviction] sufficiently match
the elements of [the] generic [offense],” and ignores the facts of the underlying
offensive conduct. Mathis v. United States, 579 U.S. 500, 504 (2016). “[A] prior
conviction cannot serve as a predicate offense” for purposes of a § 4B1.1 enhancement
if it “criminalizes a greater swath of conduct than the elements of the relevant
Guidelines offense.” Minor, 121 F.4th at 1089 (citations omitted) (cleaned up).
15 This approach differs from the analysis courts use when considering prior
convictions for purposes of similar enhancements under the Armed Career Criminal
Act (“ACCA”). See United States v. Keys, No. 24-137, 2025 WL 1555352, at *3 (E.D.
La. June 2, 2025) (Africk, J) (citing Minor, 121 F.4th at 1092–93) (“[K]ey differences
between ACCA and the Guidelines require[ ] courts to apply different relevant time
periods for each: at the time of sentencing for purposes of the Guidelines and at the
time of the offense for purposes of ACCA.”).
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When considering a § 4B1.1 enhancement, the CSA and federal drug schedule
at the time of sentencing provide the “generic” definition of the offense, see United
States v. Frierson, 981 F.3d 314, 316 (5th Cir. 2020), while the criminal statute in
effect at the time of the prior offense provides the elements of the prior conviction, see
Minor, 121 F.4th at 1089. The relevant analysis here is whether the list of cocaine-
related substances in Louisiana Schedule II (2010) matches the cocaine-related
substances listed in the current federal Schedule II. See Minor, 121 F.4th at 1093
(explaining that courts should look to the drugs listed on the federal drug schedule at
the time of sentencing); Frierson, 981 F.3d at 317–18 (explaining courts should read
the Louisiana drug distribution offenses in conjunction with the state drug schedule,
from the time of the prior conviction). Here, the state statute is facially broader than
its generic counterpart. Whereas the federal Schedule II criminalizes cocaine-related
substances “except . . . [I]oflupane,” Louisiana Schedule II (2010) included no such
exception. See supra note 11.
b. Applicability of the “Reasonable Probability Test”
Although Louisiana Schedule II (2010) is broader on its face than the generic
federal counterpart, this Court still must consider whether Williams established a
realistic probability that Louisiana would have enforced La. Rev. Stat. § 40:967 with
respect to Ioflupane. See United States v. Edmond, No. 24-30255, 2025 WL 2017287,
at 2* (5th Cir. July 18, 2025).
Williams has not challenged the government’s assertion that the realistic
probability test applies to his 2011 conviction. Nevertheless, this Court recognizes
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that, prior to Edmond, there was a split in this district on the applicability of the
realistic probability test to § 4B1.1 career offender enhancements, where the
defendant challenges whether a state conviction qualifies as a controlled substance
offense pursuant to § 4B1.2, and the state statutory definition of the drug offense is
facially broader than the generic definition. Compare United States v. Steele, No. 22-
195, 2024 WL 1877072, at *4–5 (E.D. La. Apr. 23, 2024) (Morgan, J.) (finding the
realistic probability test’s burden shift from the government to the defendant
inapplicable where the “plain language” of the state statute is broader than the
generic offense); and United States v. Keelen, No. 24-38, 2025 WL 326509, at *4–6
(E.D. La. Jan. 29, 2025) (Fallon, J.) (finding that the realistic probability test is
inapplicable where a state statute is explicitly broader than the generic offense); with
United States v. Verdin, No. 22-29, 2025 WL 1380697, at *3–4 (E.D. La. May 13, 2025)
(Vance, J.) (holding that Fifth Circuit precedent regarding the categorical approach
is clear and requires district courts to apply the realistic probability test for state
convictions, even where the state statute is facially broader than its federal
counterpart).
This Court agrees with the finding in Verdin that, “the Fifth Circuit has not
wavered in its application of the realistic probability test in the context of state
convictions . . . the Fifth Circuit [directs] that the realistic probability test [is]
applicable [where] the case involve[s] ‘a state statute and a federal statute.’” Verdin,
2025 WL 1380697, at *3 (first citing United States v. Kerstetter, 82 F.4th 437, 441 (5th
Cir. 2023), vacated on other grounds, 145 S. Ct. 121 (2024); and then quoting United
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States v. Kerstetter, No. 22-10253, 2025 WL 1079071, at *4 (5th Cir. Apr. 10, 2025)
(“Kerstetter II”)).
Further, since Steele, Keelen, and Verdin were decided, the Fifth Circuit has
resolved the split. When considering whether a Louisiana conviction qualified as a
controlled substance offense for purposes of a § 4B1.1 career offender enhancement,
the Fifth Circuit explained in Edmond that the realistic probability test applies, even
where the state drug schedule is facially broader than its federal counterpart. See
Edmond, 2025 WL 2017287, at *2–3 (“When the prior convictions are state offenses,
there is an additional wrinkle. We apply the ‘realistic probability test.’” (citations
omitted)). The Fifth Circuit also recently issued an opinion specifically applying the
realistic probability test to a defendant’s prior § 40:967 cocaine conviction for
purposes of assessing whether a career offender enhancement was appropriate. See
United States v. Gladney, No. 22 -214, at 2 (5th Cir. Jan. 8, 2026). In denying the
defendant’s argument, the court found that the defendant had “not shown a realistic
probability that Louisiana would prosecute someone for distributing Ioflupane or
established that he is not required to make that showing.” Id. Given the weight of
authority from the Fifth Circuit, the Court is persuaded that it must apply the
realistic probability test to Williams’s objection.
c. Application of the “Realistic Probability Test”
To satisfy the realistic probability test, Williams must establish, either
through his own case or others, “a realistic probability, not a theoretical possibility”
that Louisiana would have applied “its statute to conduct that falls outside the
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generic definition of the crime.” Castillo-Rivera, 853 F.3d at 222 (5th Cir. 2017)
(citation omitted); see also Minor, 121 F.4th at 1093 n.9.
In both Verdin and Edmond, the defendants were readily able to provide
specific prior examples of Louisiana actually prosecuting offenses involving the
marijuana-related substance (hemp) and synthetic cannabinoids that the generic
federal offense did not criminalize. See Verdin, 2025 WL 1380697, at *4; Edmond,
2025 WL 2017287, at *4.16 Williams has not provided this Court with any examples
of Louisiana prosecuting cases involving Ioflupane, nor has he alleged he was
convicted of such an offense.
Furthermore, in Brown v. United States, 602 U.S. 101, 109–110 (2024), the
Supreme Court found it “highly unlikely that any [cocaine convictions] were based on
the possession or sale of the Parkinson’s drug [Ioflupane]” because the cocaine
derivative “is radioactive,” “produced only through a ‘highly technical and complex
synthetic route,’” “can be stored for no more than 24 hours,” “anyone attempting to
become intoxicated by using the drug would need to inject . . . ‘15 liters of fluid, a
volume likely to cause death if administered intravenously,’” and “the Federal
Government has identified ‘no case reports’ involving individuals who misused that
drug.” Id. (citing Dept. of Just., Drug Enf’t Admin., Off. of Diversion Control, Schedule
16 Although Steele, 2024 WL 1877072, at *4–5, and Keelen, 2025 WL 326509, at *3,
take issue with the realistic probability test’s burden shifting to criminal defendants,
based on the success of the defendants in Verdin and Edmond, it is clear that the test
is not an insurmountable standard.
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of Controlled Substances: Removal of [123I]Ioflupane From Schedule II of the
Controlled Substances Act, at 2, 5–6 (2015)).
As such, Williams has not met his burden under the realistic probability test
to establish that Louisiana would have applied Louisiana Schedule II (2010) to an
offense involving Ioflupane.
III. CONCLUSION
Accordingly,
IT IS ORDERED that defendant’s first objection to the Presentence
Investigation Report, regarding his career offender status pursuant to § 4B1.1, is
OVERRULED.
New Orleans, Louisiana, February 4, 2026.
______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
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