What happened
The Fourth Circuit on Friday affirmed a 15-year prison sentence for Charles Wable, rejecting his bid to undo the Guidelines calculation behind his sentence for unlawfully possessing a firearm and witness tampering.
In a published opinion by Judge Nicole Berner, joined by Judges G. Steven Agee and DeAndrea Benjamin, the panel held Wable failed to show plain error in the district court's treatment of his 2006 West Virginia cultivating-marijuana conviction as a controlled substance offense. The panel said the state's controlled-substances law is divisible and that, unlike the delivery offense at issue in an earlier Fourth Circuit case, West Virginia manufacturing offenses do not sweep in attempt crimes.
The ruling matters for federal sentencing fights in the circuit because Wable leaned on United States v. Campbell, where the Fourth Circuit held that the then-applicable Guidelines definition covered completed controlled substance offenses but not attempt offenses. The panel distinguished Campbell, saying the West Virginia delivery offense could include attempted transfer, while the manufacturing offense did not have the same problem. The court wrote that "manufacturing offenses properly qualify as controlled substance offenses" for purposes of the firearm guideline at issue.
Wable had been convicted by a jury of unlawful firearm possession and witness tampering after probation officers found weapons, including a loaded assault-style rifle, during a home visit while he was on supervised release. According to the opinion, Wable later pressured a young man to say falsely that the rifle belonged to him, and the young man later recanted and testified that Wable had paid him to lie and threatened to harm his mother if he refused.
At sentencing, the district court adopted a presentence report that set Wable's base offense level at 26 based on the firearm and two prior controlled substance felonies: a 2007 federal cocaine conviction and the 2006 West Virginia cultivating-marijuana conviction. The court also applied an obstruction enhancement, calculated an advisory range of 130 to 162 months, then varied upward and imposed concurrent terms of 120 months on the firearm count and 180 months on the witness-tampering count.
On appeal, Wable argued the district court wrongly assumed the marijuana conviction fell under West Virginia's Uniform Controlled Substances Act rather than the state's general attempt statute. The panel said the state records were "murky at best" and did not clearly show a general-attempt conviction, leaving Wable unable to satisfy plain-error review.
The panel also rejected Wable's argument that the sentencing judge failed to address his claim that a chemical assault by correctional officers while he was in pretrial detention warranted a lower sentence. Reviewing that issue for abuse of discretion, the Fourth Circuit said the sentencing record showed the district court repeatedly took Wable's submissions into account and discussed his mitigation arguments while weighing the statutory sentencing factors.