United States v. Lange

• Decision Date: 17 July 2017
• Docket Number: No. 16-15164,16-15164
• Citation: 862 F.3d 1290
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Arthur Kyle LANGE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

862 F.3d 1290

UNITED STATES of America, Plaintiff–Appellee,

v.Arthur Kyle LANGE, Defendant–Appellant.

No. 16-15164

United States Court of Appeals, Eleventh Circuit.

July 17, 2017

Nancy J. Hess, Edwin F. Knight, Robert G. Davies, U.S. Attorney's Office, Pensacola, FL, Peter G. Fisher, U.S. Attorney's Office, Tallahassee, FL, Pamela C. Marsh, U.S. Attorney's Office, Panama City, FL, for Plaintiff–Appellee.

Michelle Kathleen Daffin, Federal Public Defender's Office, Panama City, FL, Richard Michael Summa, Randolph Patterson Murrell, Federal Public Defender's Office, Tallahassee, FL, for Defendant–Appellant.

Before ED CARNES, Chief Judge, WILLIAM PRYOR, Circuit Judge, and MOORE,^* District Judge.

WILLIAM PRYOR, Circuit Judge:

This appeal requires us to decide whether a Florida conviction of principal to attempted manufacture of a controlled substance, see Fla. Stat. § 777.011, qualifies as a "controlled substance offense," United States Sentencing Guidelines Manual § 4B1.2(b) (Aug. 2016). We must also decide whether the government engaged in sentencing factor manipulation when it arranged multiple transactions in a sting operation. Arthur Kyle Lange sold guns and drugs to a confidential informant in five separate transactions. After Lange pleaded guilty to various firearm and drug offenses, the district court sentenced him to a term of 130 months of imprisonment, at the low end of his advisory guideline range. Lange objected to receiving a higher base offense level for his prior Florida conviction of principal to attempted manufacture of methamphetamine, but the district court overruled his objection. Lange argues that because the Florida statute for principal liability makes an individual liable if he aids and abets an attempted crime without requiring a completed offense, the Florida statute is too broad to be a "controlled substance offense" under the Guidelines. But the definition of "controlled substance offense" and the authoritative commentary make clear that the crime of aiding an attempt to manufacture is "an offense ... that prohibits ... manufacture," U.S.S.G. § 4B1.2(b). Because a conviction of principal to attempted manufacture of a controlled substance qualifies as a "controlled substance offense," and because Lange cannot prove that the government engaged in sentencing factor manipulation when it arranged multiple transactions, we affirm.

I. BACKGROUND

With the help of a confidential informant, federal agents facilitated a total of five controlled purchases from Arthur Kyle Lange. In the first transaction, Lange agreed to sell the informant Xanax and a firearm and discussed future purchases. Over a few months, Lange sold the informant more drugs and firearms, including a gun with an obliterated serial number. After he was arrested, Lange pleaded guilty to five counts of unlawful possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2), three counts of distributing alprazolam, 21 U.S.C. § 841(a)(2), (b)(2), and two counts of distributing methamphetamine and alprazolam, id. § 841(a)(1), b(2), (b)(1)(C). The district court accepted Lange's guilty plea and, with the parties' consent, applied the amended Sentencing Guidelines that were to take effect on August 1, 2016.

Lange's criminal history included a 2011 conviction for the Florida offense "Principal to Attempted Manufacture of Controlled Substance." Lange objected to the factual description of the offense in the presentence investigation report but agreed that he had the prior conviction. For the purpose of determining Lange's sentence, the district court counted this prior conviction as a "controlled substance offense," U.S.S.G. § 4B1.2(b).

Lange's sentencing range was a function of his prior conviction of a controlled substance offense as well as the specific facts surrounding his crimes. Under the firearm guideline, U.S.S.G. § 2K2.1, unlawful possession of a firearm after committing a controlled substance offense provided a base offense level of 20. Id. § 2K2.1(a)(4)(A). Because the offense involved five firearms, the district court added two levels. Id. § 2K2.1(b)(1)(A). Because the offense involved a firearm with an obliterated serial number, the district court added four levels. Id. § 2K2.1(b)(4)(B). Because Lange possessed the firearm in connection with another felony offense—the sale of drugs along with the firearms—the district court added an additional four levels. Id. § 2K2.1(b)(6)(B). Because Lange accepted responsibility and assisted authorities, the district court subtracted three levels. Id. § 3E1.1(a), (b). That calculation provided a total offense level of 27. Combined with Lange's criminal history category of VI, the Guidelines provided a sentencing range of 130–162 months of imprisonment. After considering the statutory sentencing factors, 18 U.S.C. § 3553(a), the district court imposed concurrent sentences of 130, 120, and 60 months, three years of supervised release, and $1,000 in a special monetary assessment.

II. STANDARDS OF REVIEW

This Court reviews de novo whether a prior conviction is a "controlled substance offense" under Section 4B1.2(b). See United States v. Frazier , 89 F.3d 1501, 1505 (11th Cir. 1996). When a party raises an argument for the first time on appeal, this Court reviews for plain error. United States v. Chafin , 808 F.3d 1263, 1268 (11th Cir. 2015). We may not correct an error that the defendant failed to raise in the district court unless the error is plain, affects substantial rights, and seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Rodriguez , 398 F.3d 1291, 1298 (11th Cir. 2005) ; Fed. R. Crim. P. 52.

III. DISCUSSION

We divide our discussion in two parts. First, we explain that Lange's prior conviction qualifies as a "controlled substance offense" under the Guidelines. Second, we explain that the government did not engage in sentencing factor manipulation.

A. Controlled Substance Offense

The district court determined that Lange's prior conviction for "Principal to Attempted Manufacture of Controlled Substance" was a "controlled substance offense" as defined by the Guidelines, U.S.S.G. § 4B1.2(b). The parties do not contest that the Florida crime of "Manufacture of Controlled Substance" is a controlled substance offense. They instead dispute whether Florida principal liability as applied to a controlled substance offense reaches conduct beyond the scope of the inchoate liability covered by the Guidelines.

We apply the categorical approach to determine what constitutes a controlled substance offense, which means that we compare the definition in the Guidelines with the statutory offense, "not the conduct underlying the conviction." United States v. Lipsey , 40 F.3d 1200, 1201 (11th Cir. 1994). "We look to the plain language of the definitions to determine their elements," and we "need not search for the elements of ‘generic’ definitions of ... ‘controlled substance offense’ because the[ ] term[ ] [is] defined by ... the Sentencing Guidelines." United States v. Smith , 775 F.3d 1262, 1267 (11th Cir. 2014).

The Guidelines define a "controlled substance offense" as including any state or federal offense punishable by a year or more for the manufacturing or trafficking of a controlled substance:

The term "controlled substance offense" means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(b). The commentary in Application Note 1 further states that this definition includes inchoate crimes: " ‘Crime of violence’ and ‘controlled substance offense’ include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." Id. § 4B1.2(a) cmt. n.1 (emphasis omitted). "[T]h[is] commentary constitutes ‘a binding interpretation’ of the term ‘controlled substance offense.’ " United States v. Smith , 54 F.3d 690, 693 (11th Cir. 1995) (citation omitted).

"[O]ur interpretation of the Sentencing Guidelines is governed by traditional rules of statutory construction," United States v. Shannon , 631 F.3d 1187, 1189 (11th Cir. 2011), and "[d]efinition sections and interpretation clauses are to be carefully followed," Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 225 (2012). We give an application note "its most natural reading" even if "it actually enlarges, rather than limits, the applicability of the enhancement." United States v. Probel , 214 F.3d 1285, 1288 (11th Cir. 2000). We presume that the Sentencing Commission "said what it meant and meant what it said." Shannon , 631 F.3d at 1190 (quoting United States v. Browne , 505 F.3d 1229, 1250 (11th Cir. 2007) ).

Lange's prior conviction is not for "aiding and abetting" or "attempting" a controlled substance offense; instead, Lange was convicted under a Florida statute that defines principal liability. Florida law creates principal liability for aiding and abetting an attempted crime:

Principal in first degree.—Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed , is a principal in the first degree and may be charged, convicted, and punished as such, whether he or she is or is not actually or constructively present at the commission of such offense.

Fla. Stat. § 777.011 (emphasis added). We must decide whether the definition of "controlled substance offense," as informed by Application Note 1, is broad enough to encompass liability as a principal in the first degree under Florida law.

Lange relies on our opinion in Young v. United States , 936 F.2d 533 (11th Cir. ...