On Appeal From the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal No. 88-00047-01.
Higginbotham, Becker and Nygaard, Circuit Judges.
Appellant Easton Whyte was sentenced to a term of 30 years' imprisonment for a narcotics violation under the career offender provision of the U.S. Sentencing Guidelines, which applies to three-time drug offenders. A mandatory five-year enhancement for carrying a weapon during a drug trafficking crime increased Whyte's total sentence to 35 years. Because Whyte was rendered a career offender on account of two prior misdemeanor convictions in state court for sales of small amounts of marijuana, he argues that the application of this guideline seriously overrepresents the nature of his past criminal behavior. Therefore, Whyte contends, the district court committed reversible error in refusing to depart from the applicable guideline range.
This court has recently held that a district court's discretionary refusal to depart is not appealable. See United States v. Denardi, 892 F.2d 269 (3d Cir. 1989). We conclude that this case is controlled by Denardi. Accordingly. to the extent that Whyte claims error in the district court's refusal to depart, we will dismiss his appeal. Whyte contends further that the Sentencing Commission lacked authority to write the career offender guideline as broadly as it did, that the sentence imposed on him violates the eighth amendment, and that the district court erroneously instructed the jury. Because we find these contentions to be without merit, we will affirm.
On December 28, 1987, two Philadelphia police officers observed appellant Easton Whyte in a car holding a bag of white powder they thought to be cocaine. Whyte attempted to speed away, and a chase ensued. Whyte eventually slammed his car into several parked cars, and the police cruiser in turn crashed into Whyte's car. One officer then pursued Whyte on foot. As he pulled Whyte down from a fence Whyte was attempting to scale, Whyte turned and pointed a loaded .45 caliber semi-automatic handgun at the officer. The officer knocked it away with his police radio, a wrestling match ensued, and Whyte was eventually restrained by the officer and his partner. Whyte was found to be carrying about 41 grams of crack and 10 grams of regular cocaine, with a street value of about $3710 and $680 respectively.
Whyte was convicted of possession of cocaine with intent to distribute,*fn1 possession of a firearm during a drug trafficking crime,*fn2 and possession of a firearm by a former felon.*fn3 Because Whyte had been convicted for drug offenses twice previously, the district court applied the career offender guideline, section 4B1.1, in calculating the sentence for Whyte's drug offense. But for the application of that provision, the guidelines would have provided for a sentence between 121 and 151 months for the drug conviction; as a career offender, however, Whyte faced a sentencing range of 30 years to life applicable to him.*fn4 He also received a mandatory five-year sentence enhancement for carrying a gun during a drug trafficking crime, bringing his total sentence up to 35 years.*fn5
Application of the career offender provision was founded upon the following two predicate offenses:
(1) On August 20, 1984, Whyte was convicted in the Philadelphia Court of Common Pleas of selling $10.00 of marijuana to a police officer. He was fined $200 and ordered to pay $275 court costs.
(2) On April 27, 1987, he was convicted in the same court of possessing "1500 doses" and "200 plastic packets" of marijuana with intent to distribute them.*fn6 He was fined $1000 and ordered to pay $75 court costs.
Neither side disputes that the career offender guideline, on its own terms, applies to this case. It provides, in relevant part, that an adult who commits a controlled substance offense is a career offender if he "has at least two prior felony convictions of . . . a controlled substance offense."*fn7 The guidelines define these terms more precisely. A "'[prior] felony conviction' means a prior adult federal or state conviction for an offense punishable by . . . a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed." Id. § 4B1.2 application note 3 (emphasis added). A "controlled substance offense" is any offense identified in 21 U.S.C. §§ 841, 845b, 856, 952(a), 955, 955(a), 959; and similar offenses." Id. § 4B1.2(2)(Oct. 1988 ed.) (emphasis added).*fn8 21 U.S.C. § 841(a)(1) criminalizes possession with intent to distribute a controlled substance and the analogous Pennsylvania statute provides for imprisonment of up to five years, see Pa.Stat.Ann.tit. 35, § ...