United States Court of Appeals For the Second Circuit

August Term 2022

Submitted: April 12, 2023 Decided: June 10, 2024

No. 21-1809

UNITED STATES OF AMERICA,

Appellee,

v.

BRANDON WASHINGTON, a.k.a. GOLDIE,

Defendant-Appellant. ∗

Appeal from the United States District Court for the Western District of New York No. 19-cr-125-4, Richard J. Arcara, Judge.

Before: SULLIVAN, MERRIAM, and KAHN, Circuit Judges.

Brandon Washington appeals from a judgment of conviction in the Western District of New York (Arcara, J.) following his guilty plea to possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Washington principally argues that the district court erroneously determined his criminal history category under the United States Sentencing Guidelines (the

∗ The Clerk of Court is respectfully directed to amend the official case caption as set forth above. “Guidelines”) by improperly assessing a criminal history point for a prior state- court conviction for harassment. We disagree. The district court’s addition of this point was not error because section 4A1.2(c)(1)(B) of the Guidelines provides that certain offenses normally excluded from the criminal history calculation will nonetheless be counted if they are “similar to” the instant offense. U.S.S.G. § 4A1.2(c)(1)(B). Since Washington’s prior state-court harassment conviction stemmed from the same conduct – the sale of controlled substances (from the same house, no less) – as did his current federal conviction, we hold that the prior offense was “similar to” the instant offense and the district court did not err in adding the extra criminal history point. The rest of Washington’s arguments are meritless, so we AFFIRM the district court’s judgment.

Judge Merriam dissents in a separate opinion.

AFFIRMED.

Michael J. Stachowski, Michael J. Stachowski, P.C., Buffalo, NY, for Defendant-Appellant.

Katherine A. Gregory, Assistant United States Attorney, for Trini E. Ross, United States Attorney for the Western District of New York, Buffalo, NY, for Appellee. RICHARD J. SULLIVAN, Circuit Judge:

Brandon Washington appeals from a judgment of conviction in the United States District Court for the Western District of New York (Arcara, J.) following his guilty plea to possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Washington principally argues that the district court erroneously determined his criminal history category under the United States Sentencing Guidelines (the “Guidelines”) by improperly assessing a

2 criminal history point for a prior state-court conviction for harassment. 1 We disagree. The district court’s addition of this point was not error because section 4A1.2(c)(1)(B) of the Guidelines provides that certain offenses normally excluded from the criminal history calculation will nonetheless be counted if they are “similar to” the instant offense. U.S.S.G. § 4A1.2(c)(1)(B). Since Washington’s prior state-court harassment conviction stemmed from the same conduct – the sale of controlled substances (from the same house, no less) – as did his current federal conviction, we hold t