United States v. Rodríguez-Rivera
| Decision Date | 04 March 2021 |
| Docket Number | No. 19-1529,19-1529 |
| Citation | 989 F.3d 183 |
| Parties | UNITED STATES of America, Appellee, v. Raymond RODRÍGUEZ-RIVERA, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Kevin Lerman, Research & Writing Specialist, with whom Eric Alexander Vos, Federal Public Defender, and Franco L. Pérez-Redondo, Assistant Federal Public Defender, Supervisor, Appeals Division, were on brief, for appellant.
Julia M. Meconiates, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, San Juan, PR, Appellate Division, were on brief, for appellee.
Before Howard, Chief Judge, Kayatta, Circuit Judge, and Casper,* District Judge.
Once again, we are called upon to consider the circumstances in which a sentencing enhancement for prior involvement with controlled substances is appropriate. Section 2K2.1(a) of the United States Sentencing Guidelines provides for certain sentencing enhancements in situations where, among other conditions, the defendant previously has been convicted of controlled substance offenses. See U.S.S.G. § 2K2.1(a) ; see also § 4B1.1. Section 4B1.2(b), in turn, defines "controlled substance offense[s]." Application Note 1 to section 4B1.2 further explains that conspiring to commit a controlled substance offense is itself a controlled substance offense.
In United States v. Lewis, we rejected as contrary to binding circuit precedent the contention that Application Note 1 overreached by adding "conspiring" to the list of offenses contained in the Guideline text itself. 963 F.3d 16, 21–23 (1st Cir. 2020). In so doing, we set aside as unpreserved a narrower contention: That the term "conspiring," as used in Application Note 1, includes only a so-called generic form of conspiracy that has as an element an overt act in furtherance of the conspiracy, and therefore does not include a conspiracy charged under 21 U.S.C. § 846, which admittedly has no such overt act element. Id. at 21, 26-27 ().
This appeal now requires that we address that narrower contention head-on without the leeway afforded by plain error review. Our answer matters because the classification of an offense as a controlled substance offense often results in longer recommended sentences by raising base offense levels, see, e.g., U.S.S.G. § 2K2.1(a), and section 846 most commonly serves as the vehicle for charging conspiracy offenses in federal drug cases. To date, the six circuits that have addressed this issue have split four to two1 in deciding whether the absence of an overt act requirement precludes section 846 conspiracies from qualifying as conspiracies under either section 2K2.1(a) or section 2L1.2(b) of the Guidelines.2
For the following reasons, we join the growing majority of circuits and hold that a conviction under 21 U.S.C. § 846 for conspiring to commit a controlled substance offense qualifies as a conviction for a controlled substance offense under section 4B1.2(b) of the Guidelines, even though section 846 does not require proof of an overt act.
On June 14, 2018, officers of the Puerto Rico Police Department served a state-issued search warrant at an apartment in San Juan, Puerto Rico. Rodríguez-Rivera was inside the apartment at the time, along with a woman and children. While conducting a search of the apartment, police discovered a Glock pistol that had been modified to shoot automatically, two bulletproof vests, and several dozen rounds of ammunition. Rodríguez-Rivera took responsibility for the contraband and was arrested. Later, during an interview with federal agents, he provided a written statement acknowledging possession of the firearm.
A federal grand jury returned an indictment charging Rodríguez-Rivera with unlawful possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and unlawful possession of a machine gun, in violation of 18 U.S.C. § 922(o). He pled guilty to both charges.
Rodríguez-Rivera had been previously convicted of conspiracy to distribute cocaine, cocaine base, and heroin, in violation of 21 U.S.C. § 846, and was sentenced to 24 months' imprisonment for that offense. The Probation Office's presentence investigation report (PSR) for the instant offense consequently recommended that the district court apply a controlled substance enhancement, pursuant to section 2K2.1(a), and assigned Rodríguez-Rivera a base offense level of 22. Rodríguez-Rivera objected, citing an unpublished Fourth Circuit ruling, United States v. Whitley, 737 F. App'x 147 (4th Cir. 2018), in support of his argument that a conviction under section 846 is not a controlled substance offense under the Guidelines and that therefore, his base offense level should be 20, rather than 22.
The district court agreed with Probation and applied the enhancement, which added six and eight months of imprisonment, respectively, to the bottom and top of the Guidelines sentencing range. The district court sentenced Rodríguez-Rivera to thirty-eight months' imprisonment and a three-year term of supervised release. This appeal followed.
We review de novo the district court's interpretation and application of the Sentencing Guidelines. United States v. Lewis, 963 F.3d 16, 20 (1st Cir. 2020). In this case, the district court applied section 2K2.1(a)(3), which provides that the base offense level will be 22 if:
(A) the offense involved a (i) semiautomatic firearm that is capable of accepting a large capacity magazine; or (ii) firearm that is described in 26 U.S.C. § 5845(a) ; and (B) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense[.]
U.S.S.G. § 2K2.1(a)(3). The existence of a qualifying firearm is not in contention in this case, nor is there any claim that Rodríguez-Rivera was not convicted in 2005 of conspiring to possess with intent to distribute cocaine, cocaine base, and heroin, in violation of 21 U.S.C. § 846. Instead, the parties dispute whether a section 846 conspiracy qualifies as the type of conspiracy that constitutes a controlled substance offense.
The term "controlled substance offense," as used in section 2K2.1(a), is defined in section 4B1.2(b) as follows:
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.
Application Note 1 to that provision adds that a "controlled substance offense" "include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." U.S.S.G. § 4B1.2 cmt. n.1. And our controlling circuit precedent deems that interpretation to be authoritative. See United States v. Lewis, 963 F.3d at 21–22 ().
In view of this precedent, Rodríguez-Rivera trains his argument on the definition of the term "conspiring" as used in Application Note 1. He defines the term in three steps: First, in deciding what "conspiring" means in this context, he says we should ascertain the "generic" form of conspiracy offenses. He then says that the generic form includes as an element the commission of an overt act in furtherance of the conspiracy. Finally, because a conviction under section 846 admittedly does not have as an element the commission of an overt act, he concludes that his prior conviction does not qualify as a conspiracy offense for purposes of Guidelines section 2K2.1. Two circuits have more or less accepted this argument. See United States v. Martinez-Cruz, 836 F.3d 1305, 1309, 1314 (10th Cir. 2016) ; United States v. McCollum, 885 F.3d 300, 307–09 (4th Cir. 2018).
Our skepticism focuses on the first step in Rodríguez-Rivera's argument: We see little sense in identifying and adopting a generic version of the conspiracy offense as the benchmark against which to compare a violation of section 846. Rather, it seems apparent that the Guidelines (especially as interpreted in Application Note 1) tell us what type of conspiracy offense to look for: One "that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance ... or the possession of [the same]." U.S.S.G. § 4B1.2(b). Section 846, as applied to a controlled substance offense, would seem to qualify: By barring two or more people from agreeing to manufacture controlled substances, for example, it would seem to prohibit at least one common means of drug manufacturing. 21 U.S.C. §§ 846, 841(a).
More generally, and significantly, section 846 is part of the Controlled Substances Act, and section 846 is the only part of that Act that specifically makes any form of conspiring a crime. Given our circuit precedent -- that a controlled substance offense includes at least some types of conspiracy -- it would be odd indeed if the definition of a controlled substance offense excluded the only form of conspiracy prohibited by the Controlled Substances Act itself. "Ultimately, context determines meaning, and we ‘do not force term-of-art definitions into contexts where they plainly do not fit and produce nonsense.’ " Johnson v. United States, 559 U.S. 133, 139-40, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (citation omitted) (quoting Gonzales v. Oregon, 546 U.S. 243, 282, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (Scalia, J., dissenting)).
Resisting this common-sense notion that a conspiracy under the Controlled Substances Act is a controlled substance offense, Rodríguez-Rivera argues that United States v. Taylor, ...
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