Background
Charles Raymond Wable was convicted of unlawfully possessing a firearm and tampering with a witness while on supervised release for unrelated convictions. He had acquired weapons including a loaded assault-style rifle and pressured a young man to testify falsely at a revocation hearing. The district court calculated his base offense level at twenty-six based on two prior controlled substance felony convictions and applied an obstruction of justice enhancement. Wable challenged the calculation of his base offense level and argued the court failed to consider his claim of being chemically assaulted by correctional officers.
The court’s reasoning
The court reviewed the base offense level calculation for plain error. It determined that the West Virginia Uniform Controlled Substances Act is divisible because it lists separate offenses for manufacturing, delivering, or possessing with intent. The court found that Wable was convicted of cultivating marijuana, which falls under the manufacturing offense. Unlike the delivery offense addressed in United States versus Campbell, the manufacturing offense under the Act does not encompass attempt offenses and thus qualifies as a controlled substance offense. Regarding the claim of abuse of discretion, the court found the district court repeatedly noted it considered all of Wable’s submissions and arguments before sentencing.
What it means going forward
The decision clarifies that manufacturing offenses under the West Virginia Uniform Controlled Substances Act qualify as controlled substance offenses for sentencing enhancements, distinguishing them from delivery offenses that may involve attempts.