United States v. Hightower ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
5-31-1994
United States of America v. Hightower
Precedential or Non-Precedential:
Docket 93-5117
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 93-5117
UNITED STATES OF AMERICA
V.
KEVIN HIGHTOWER,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Criminal No. 92-00317-01)
Submitted Under Third Circuit LAR 34.1(a)
October 8, 1993
Before: HUTCHINSON, COWEN and NYGAARD, Circuit Judges
(Opinion Filed May 31, 1994)
DAVID E. SCHAFER, ESQUIRE
Assistant Federal Public Defender
United States Courthouse
402 East State Street, Room 102A
Trenton, New Jersey 08608
Attorney for Appellant
MICHAEL CHERTOFF, ESQUIRE
EDNA B. AXELROD, ESQUIRE
R. DAVID WALK, JR., ESQUIRE
JOHN J. FARMER, JR., ESQUIRE
Office of United States Attorney
970 Broad Street
Room 502
Newark, New Jersey 07102
Attorneys for Appellee
OPINION OF THE COURT
1
NYGAARD, Circuit Judge.
Kevin Hightower pleaded guilty to one count of
conspiracy to distribute cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and 846, and one count of possession of a firearm by
a felon, in violation of 18 U.S.C. § 922(g)(1). The district
court sentenced him as a career offender to 21 years and 10
months of imprisonment, and Hightower appealed from his judgment
of conviction and sentence. We affirmed, but later granted
rehearing to consider whether a defendant convicted of conspiracy
to distribute a controlled dangerous substance is subject to the
career offender provisions of the U.S. Sentencing Guidelines.1
Our review is plenary. United States v. Parson, 955 F.2d 858,
863 (3d Cir. 1992).
I.
Section 4B1.1 of the Sentencing Guidelines classifies a
defendant as a career offender if:
1
On appeal, Hightower argued that the district court erred
(1) in determining that his state court convictions were not
"related cases" for purposes of U.S.S.G. §4A1.2, (2) in deciding
not to reconsider his selective prosecution claim, and (3) in
declining to depart downward under U.S.S.G. §4A1.3. We
concluded, however, that these assertions were without merit. The
statement in the commentary to section 4A1.2 that prior sentences
separated by an intervening arrest are not considered related is
not "inconsistent with, or a plainly erroneous reading of, that
guideline," Stinson v. United States, 113 S. Ct. 1913, 1915
(1993); therefore, it is controlling, and Hightower's three
convictions following separate arrests are not related under
section 4A1.2. Assuming his second claim is timely and not
waived, the record below is insufficient to support a claim for
selective prosecution, and we lack jurisdiction to review
Hightower's third claim since the district court made a
discretionary decision not to depart under section 4A1.3. See
United States v. Frazier, 981 F.2d 92, 95-97 (3d Cir. 1992),
cert. denied, 113 S. Ct. 1661 (1993).
2
(1) the defendant was at least eighteen years old at
the time of the instant offense, (2) the instant
offense of conviction is a felony that is either a
crime of violence or a controlled substance offense,
and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a
controlled substance offense.
U.S.S.G. §4B1.1. The question before us involves the second
requirement, specifically, the scope of offenses that fall within
the category of a "controlled substance offense."2 The
commentary to section 4B1.1 states that:
28 U.S.C. § 994(h) mandates that the Commission assure
that certain "career" offenders, as defined in the
statute, receive a sentence of imprisonment "at or near
the maximum term authorized." Section 4B1.1 implements
this mandate. The legislative history of this
provision suggests that the phrase "maximum term
authorized" should be construed as the maximum term
authorized by statute. . . .
U.S.S.G. §4B1.1, comment. (backg'd.) (emphasis added). Based on
this commentary, Hightower maintains that the definition of a
controlled substance offense is circumscribed by the list of
offenses enumerated in "the statute," 28 U.S.C. § 994(h)(1)(B),
which does not include conspiracy to distribute a controlled
substance in violation of 21 U.S.C. § 846.
Nevertheless, the commentary to section 4B1.1 also
states that a controlled substance offense is defined in section
4B1.2 which provides that:
The term "controlled substance offense" means an
offense under a federal or state law prohibiting the
manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance
2
Hightower was 24 years old at the time of this offense, and his
prior state court convictions for possession of a controlled
substance with intent to distribute satisfy the third
requirement.
3
(or a counterfeit substance) with intent to
manufacture, import, export, distribute, or dispense.
U.S.S.G. §4B1.2(2). The commentary to section 4B1.2 expands the
definition to include "the offenses of aiding and abetting,
conspiring, and attempting to commit such offenses." U.S.S.G.
§4B1.2, comment. (n.1). Conspiracy to distribute a controlled
substance is thus included as a predicate offense for sentencing
under the career offender provisions of the Sentencing
Guidelines. The question then becomes whether the Sentencing
Commission exceeded its statutory authority by expanding the
definition of a "controlled substance offense" beyond those
offenses specifically listed in 28 U.S.C. § 994(h)(2)(B).
II.
Unlike the guidelines themselves or policy statements,
the commentary is not directly authorized in the Sentencing
Reform Act of 1984. See Stinson, 113 S. Ct. at 1917; 28 U.S.C.
§§ 994(a)(1)-(2); U.S.S.G. Ch.1, Pt.A, §1. In Stinson v. United
States, 113 S. Ct. 1913 (1993), however, the Supreme Court
addressed "the authoritative weight to be accorded to the
commentary to the Sentencing Guidelines." Id. at 1916. Using
the analogy of "an agency's interpretation of its own legislative
rule," id. at 1919, the Stinson Court asserted that:
[C]ommentary in the Guidelines Manual that interprets
or explains a guideline is authoritative unless it
violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of,
that guideline.
4
Id. at 1915; see also United States v. Joshua, 976 F.2d 844, 855
(3d Cir. 1992) (comparing Sentencing Commission's commentary to
administrative agency's interpretation of an ambiguous statute).
Section 1B1.7 of the Sentencing Guidelines attributes
the commentary with three different functions:
First, it may interpret the guideline or explain how it
is to be applied. Failure to follow such commentary
could constitute an incorrect application of the
guidelines, subjecting the sentence to possible
reversal on appeal. See 18 U.S.C. § 3742. Second, the
commentary may suggest circumstances which, in the view
of the Commission, may warrant departure from the
guidelines. Such commentary is to be treated as the
legal equivalent of a policy statement. Finally, the
commentary may provide background information,
including factors considered in promulgating the
guideline or reasons underlying promulgation of the
guideline. As with a policy statement, such commentary
may provide guidance in assessing the reasonableness of
any departure from the guidelines.
U.S.S.G. §1B1.7. The commentary at issue in Stinson was
"interpretive and explanatory" of a portion of the career
offender guideline and thus was controlling. See 113 S. Ct. at
1917-18.3
III.
A.
In this case, the statutory provision referred to in
the commentary, 28 U.S.C. § 994(h), provides that:
(h) The Commission shall assure that the guidelines
specify a sentence to a term of imprisonment at or near
the maximum term authorized for categories of
defendants in which the defendant is eighteen years old
or older and--
(1) has been convicted of a felony that is--
3
The Stinson Court held that the commentary excluding unlawful
possession of a firearm by a felon as a predicate offense under
the career offender guideline was binding. Id. at 1920.
5
(A) a crime of violence; or
(B) an offense described in section 401 of
the Controlled Substances Act (21 U.S.C.
841), sections 1002(a), 1005, and 1009 of the
Controlled Substances Import and Export Act
(21 U.S.C. 952(a), 955, and 959), and section
1 of the Act of September 15, 1980 (21 U.S.C.
955a); and
(2) has previously been convicted of two or more
prior felonies, each of which is--
(A) a crime of violence; or
(B) an offense described in section 401 of
the Controlled Substances Act (21 U.S.C.
841), sections 1002(a), 1005, and 1009 of the
Controlled Substances Import and Export Act
(21 U.S.C. 952(a), 955, and 959), and section
1 of the Act of September 15, 1980 (21 U.S.C.
955a).
The plain language of the statute thus requires the Sentencing
Commission to assure that certain offenders receive maximum or
near-maximum terms of imprisonment. The problem is that a
"controlled substance offense" is not explicitly defined in
§ 994(h)(1)(B).
The legislative history states that the intent of
§ 994(h) was to impose "substantial prison terms . . . on repeat
violent offenders and repeat drug traffickers." S. Rep. No. 225,
98th Cong., 2d Sess. 175 (1983), reprinted in 1984 U.S.C.C.A.N.
3182, 3358; see also United States v. Whyte, 892 F.2d 1170, 1174
(3d Cir. 1989). Furthermore, the Senate Report states that
subsection (h) is "not necessarily intended to be an exhaustive
list of types of cases in which . . . terms at or close to
authorized maxima should be specified." S. Rep. No. 225, 98th
Cong., 2d Sess. 176 (1983), reprinted in 1984 U.S.C.C.A.N. 3182,
3359; see also Parson, 955 F.2d at 867.
6
B.
We have held that state court convictions can serve as
controlled substance offenses under the career offender
guideline, and that the Sentencing Commission has the authority
to expand the scope of crimes of violence beyond the original
congressional definition. In United States v. Whyte, 892 F.2d
1170 (3d Cir. 1989), the defendant contended that, for purposes
of the career offender guideline, controlled substance offenses
were limited to the federal statutes listed in 28 U.S.C. § 994(h)
and did not include "convictions obtained under similar or
analogous state statutes." Id. at 1174. Whyte rejected this
argument, surmising that:
If Congress had wanted only convictions under
particular federal statutes to serve as predicate
offenses, it could have said so quite simply. Instead,
Congress referred to 'offenses described in' -- not
'convictions obtained under' -- those statutes.
Id. Additionally, the court reasoned that the purpose underlying
§ 994(h) and the possibility of prosecution under 21 U.S.C. § 841
for the same conduct weighed in favor of counting the defendant's
state convictions towards career offender status. Id. In United
States v. Parson, 955 F.2d 858 (3d Cir. 1992), we concluded that
§ 994(h) served "as a floor for the career offender category, not
as a ceiling," id. at 867, and that § 994(h) did not bar the
Sentencing Commission from including additional predicate
offenses within the guideline definition of crimes of violence.
The Commission's authority to implement sentencing
policy through the guidelines, however, is not coextensive with
its authority to do so through commentary. As discussed above,
7
the function of commentary is to (1) explain or interpret the
guidelines, (2) suggest circumstances warranting departure from
the guidelines and (3) provide background information on the
guidelines. In contrast, "[t]he guidelines provide direction as
to the appropriate type of punishment -- probation, fine, or term
of imprisonment -- and the extent of the punishment imposed."
Stinson, 113 S. Ct. at 1917. If "commentary and the guideline it
interprets are inconsistent[,] . . . the Sentencing Reform Act
itself commands compliance with the guideline." Id. at 1918
(citing 18 U.S.C. §§ 3553(a)(4), (b)); accord United States v.
Vea-Gonzales, 999 F.2d 1326, 1330 (9th Cir. 1993); United States
v. Mandarelli, 982 F.2d 11, 13 (1st Cir. 1992). The Supreme
Court explained in Stinson that:
Although amendments to guidelines provisions are one
method of incorporating revisions, another method open
to the Commission is amendment of the commentary, if
the guideline which the commentary interprets will bear
the construction. Amended commentary is binding on the
federal courts even though it is not reviewed by
Congress, and prior judicial constructions of a
particular guideline cannot prevent the Commission from
adopting a conflicting interpretation that satisfies
the standard we set forth today.
113 S. Ct. at 1919 (emphasis added).
C.
Although we have not addressed the question presented
in this appeal,4 other courts of appeals have, reaching differing
4
In United States v. Preston, 910 F.2d 81 (3d Cir. 1990), cert.
denied, 498 U.S. 1103, 111 S. Ct. 1002 (1991), we stated that
"'crimes of violence' include the offenses of aiding and
abetting, conspiring, and attempting to commit such offenses."
Id. at 86 n.6. However, that case involved the Career Criminals
Amendment Act, 18 U.S.C. § 924(e), not section 4B1.2 of the
8
results. In United States v. Price, 990 F.2d 1367 (D.C. Cir.
1993), the court analyzed the applicability of the career
offender provisions to a conviction for conspiracy to commit an
offense against the United States in violation of 18 U.S.C.
§ 371. The Price court asserted that:
Price clearly qualified as such [a career offender]
under the definitions supplied by § 4B1.2 of the
Guidelines and its Application Notes. However, because
the Sentencing Commission adopted §§ 4B1.1 & 4B1.2
solely in an effort to fulfill the mandate of 28 U.S.C.
§ 994(h), and § 994(h) plainly fails to reach
conspiracies to commit controlled substance crimes, we
vacate the sentence and remand the case to the district
court for resentencing.
Id. at 1368. Although some courts had accepted without comment
the commentary's inclusion of conspiracy as a controlled
substance offense,5 the Price court concluded that the Commission
had fashioned the career offender provisions "solely as an
implementation of § 994(h)," and "acted explicitly upon grounds
that do not sustain its action." 990 F.2d at 1369-70.
Sentencing Guidelines, and the Preston court's interpretation of
the guidelines was dictum.
5
See, e.g., United States v. Whitaker, 938 F.2d 1551, 1552 (2d
Cir. 1991) (conviction for drug conspiracy in violation of 21
U.S.C. § 846), cert. denied, 112 S. Ct. 977 (1992); United States
v. Jones, 898 F.2d 1461, 1462 (10th Cir.) (same), cert. denied,
498 U.S. 838, 111 S. Ct. 111 (1990). We note that other courts
have simply relied on the commentary as support for including
conspiracy and attempt as crimes of violence under the career
offender guideline. See, e.g., United States v. Carpenter, 11
F.3d 788, 791 (8th Cir. 1993) ("We hold that under the Guidelines
an attempt is the same as the commission of the substantive
offense."); United States v. Fiore, 983 F.2d 1, 4 (1st Cir. 1992)
("conspiracy convictions can serve as predicate offenses under
the career offender provisions of the federal sentencing
guidelines"), cert. denied, 113 S. Ct. 1830 (1993); United States
v. Guerra, 962 F.2d 484, 487 (5th Cir. 1992) ("we should not
deviate from a plain reading of the guidelines and their official
commentary").
9
Recognizing that the Commission may have discretionary authority
under 28 U.S.C. § 994(a) to specify long terms of imprisonment
for defendants not specifically covered under § 994(h), the Price
court nevertheless held that the commentary to section 4B1.1 was
"beyond the Commission's authority under § 994(h)." Id. at 1369.
In United States v. Heim, 15 F.3d 830 (9th Cir. 1994),
however, the court explicitly held that "the Sentencing
Commission did not exceed its statutory authority in including
conspiracy within the definition of 'controlled substance
offense' in §§ 4B1.1 and 4B1.2." Id. at 832. The Heim court's
reasoning was twofold. First, it noted that "[n]owhere in the
commentary to § 4B1.1 does the Commission suggest that it
considered § 994(h) to be the sole legal authority for
promulgating the career offender guidelines." Id. at 832
(emphasis added).6 Second, the Heim court asserted that "[t]he
Commission's decision to go beyond the mandate of § 994(h) is
also consistent with the legislative history to § 994(h)." 15
F.3d at 832.
In United States v. Baker, 16 F.3d 854 (8th Cir. 1994),
the court agreed that "§ 994(h) does not define the only crimes
for which the Commission may specify a sentence at or near the
maximum; it merely declares that the enumerated crimes must be so
6
See also United States v. Mayes, No. 93-3342, 1994 WL 59469, at
*2 (D. Kan. Feb. 15, 1994) ("mere mention of section 994(h), by
way of commentary to section 4B1.1, does not make section 994(h)
the sole authority relied upon by the Commission"); cf. Parson,
955 F.2d at 867 (suggesting in dicta that Commission could rely
on other statutory provisions besides § 994(h) as authority for
the career offender guideline); Whyte, 892 F.2d at 1174 n.11
(same).
10
treated." Id. at 857. The Baker court also expressed "serious
doubts about Price's conclusion, derived solely from the
commentary, that the only purpose of the career offender
Guideline was to implement § 994(h)." Id. Finally, in United
States v. Liranzo, 944 F.2d 73 (2d Cir. 1991), the court held
that the defendant's prior conviction for the attempted criminal
possession of cocaine was a controlled substance offense under
the "plain language" of the commentary to section 4B1.2 of the
guidelines. Id. at 78.
D.
We think that the commentary's expansion of the
definition of a controlled substance offense to include inchoate
offenses is not "inconsistent with, or a plainly erroneous
reading of" section 4B1.2(2) of the Sentencing Guidelines, and
that it does not "violate[] the Constitution or a federal
statute." Stinson, 113 S. Ct. at 1915. This commentary explains
how the guideline should be applied, and we therefore hold that
it is binding. The commentary to section 4B1.1, however, is not
explanatory or interpretive; rather, this commentary simply
provides background information on the career offender guideline.
We decline to interpret the commentary to section 4B1.1 in a way
that is contrary to the text and legislative history of 28 U.S.C.
§ 994(h), and which would nullify the commentary to section
4B1.2.
IV.
11
For all these reasons, we will affirm Hightower's
judgment of conviction and sentence.
12