United States v. Martínez-Benítez

• Decision Date: 24 January 2019
• Docket Number: No. 17-1393,17-1393
• Citation: 914 F.3d 1
• Parties: UNITED STATES of America, Appellee, v. José G. MARTÍNEZ-BENÍTEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

914 F.3d 1

UNITED STATES of America, Appellee,

v.José G. MARTÍNEZ-BENÍTEZ, Defendant, Appellant.

No. 17-1393

United States Court of Appeals, First Circuit.

January 24, 2019

Jóse Luis Novas-Debien, for appellant.

Jonathan L. Gottfried, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, and Julia M. Meconiates, Assistant United States Attorney, were on brief, for appellee.

Before Lynch, Thompson, and Barron, Circuit Judges.

THOMPSON, Circuit Judge.

At stake today is whether federal prosecutors proved José Martínez Benítez's prior Puerto Rico-law conviction (described below) is a "controlled substance offense" for federal-sentencing purposes. Concluding they did not, we vacate his sentence and remand for resentencing consistent with this opinion.

How Martínez's Case Got Here¹

Martínez pled guilty in federal court to possessing a firearm despite his status as a felon. See 18 U.S.C. § 922(g)(1). His was a "straight plea," meaning he and the government did not enter into any plea agreement. As for how things shook out at sentencing, this is what you need to know.²

The sentencing guidelines apply an enhanced base offense level of 20 for firearm offenses preceded by one felony conviction for a "controlled substance offense," see U.S.S.G. § 2K2.1(a)(4)(A) — a phrase that pertinently covers a state-law crime, "punishable by imprisonment for a term exceeding one year, that prohibits ... the possession of a controlled substance ... with intent to ... distribute," id. § 4B1.2(b); see also id. § 2K2.1 cmt. n.1 (referring the reader to § 4B1.2(b) and its accompanying application note 1 for a definition of a "[c]ontrolled substance offense").³ And the phrase covers as well "the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." Id. § 4B1.2 cmt. n.1. Also of prime importance to the present controversy, the government has "the burden of establishing" by a preponderance of the evidence "that a prior conviction qualifies as a predicate offense for sentencing enhancement purposes." United States v. Dávila-Félix, 667 F.3d 47, 55 (1st Cir. 2011) ; United States v. Bryant, 571 F.3d 147, 153 (1st Cir. 2009).

From the documents presented by prosecutors at sentencing, the district judge learned that years before his run-in with the feds, Puerto Rico authorities had charged Martínez with knowingly or intentionally possessing heroin with intent to distribute, in violation of Puerto Rico's Controlled Substances Act ("CSA"), see P.R. Laws Ann. tit. 24, § 2401 — a law commonly called "Article 401." As relevant here, Article 401 criminalizes the possession of certain controlled substances (including heroin) with intent to "manufacture, distribute, dispense, transport or conceal," see id. § 2401(a)(1), and calls for a "fixed" prison "term" of 20 years, which may be increased to a 30-year "maximum" term or decreased to a 10-year "minimum" term, if "aggravating" or "extenuating" circumstances exist, see id. § 2401(b)(1)(A). We have dealt with Article 401 before, for instance in an opinion holding that "intent to conceal" is "a non-predicate offense" under § 4B1.2(b). See Dávila-Félix, 667 F.3d at 56 (concluding that "concealment of a controlled substance" is "not commonly considered [a] drug trafficking offense[ ]").

Anyway, Martínez pled guilty to a "reclassified" charge of "attempt[ing] or conspir[ing] to commit" an "offense" under Puerto Rico's CSA, see P.R. Laws Ann. tit. 24, § 2406 — a provision colloquially called "Article 406," the penalty for which "shall not exceed" the penalty for the substantive "offense" that "was the object of the attempt or conspiracy." By doing so, he avoided a fixed mandatory 20-year prison term and made himself eligible for a suspended sentence. See P.R. Laws Ann. tit. 34, § 1027 ; see also P.R. Laws Ann. tit. 24, § 2414.⁴ And ultimately, the Puerto Rico court gave him a 3-year suspended sentence —— a sentence that has special significance as to the nature of the offense.

You should know too (because it affects the case's outcome, for reasons explained presently) that Puerto Rico's CSA bans not only possession-with-intent-to-distribute offenses covered by Article 401, but also (among other things) simple-possession offenses (i.e. , offenses involving possession of drugs not prescribed, with no intent to distribute), see P.R. Laws Ann. tit. 24, § 2404 — a law widely referred to as "Article 404," which outlaws the knowing or intentional possession of "any controlled substance, unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner, while acting in the course of his professional practice, or except as authorized by this chapter." Article 404 calls for a "fixed" 3-year prison "term," which may be increased to a 5-year "maximum" term or decreased to a 2-year "minimum" term, if "aggravating" or "extenuating" circumstances exist. We are also no strangers to Article 404 — just consider United States v. Román-Huertas, 848 F.3d 72 (1st Cir. 2017), which holds that an Article 404 "mere possession offense[ ]" does not count as a qualifying predicate under § 4B1.2(b). Id. at 77 ; see also United States v. Ramos-González, 775 F.3d 483, 507 n.27 (1st Cir. 2015).

Kicking off the sentencing in the federal case, the district judge noted that while the charging document in the Puerto Rico case listed Martínez's crime as an Article 401 possession-with-intent-to-distribute offense, the judgment showed that he had pled to an Article 406 attempt-or-conspiracy offense. Then relying on a footnote in Puerto Rico v. Ramos Rivas, 2007 TSPR 138, 171 D.P.R. 826, 2007 WL 2079844, at *1 n.1 (P.R. 2007) — which says that if an Article 401 charge is reclassified as an Article 406 offense, a court "must refer" back to Article 401 to determine the proper "penalty" — the judge ruled that Martínez's Article 406 conviction was for an "attempted conspiracy to distribute controlled substances."⁵ So the judge concluded that the Article 406 conviction amounted to a "controlled substance offense" under the guidelines and increased Martínez's base offense level accordingly — from 14 to 20, which helped set his recommended guidelines range at 30 to 37 months. And when all was said and done, the judge sentenced him to 34 months in prison.

Unhappy with this outcome, Martínez now appeals.

Jurisdiction and Standard of Review

The district judge had original jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291. And we review the judge's legal analysis de novo , see Dávila-Félix, 667 F.3d at 54, noting additional details as needed.

Summary of the Parties' Main Arguments

Attacking the district judge's work, Martínez contends that none of the government-provided documents showed his Article 406 conviction was for attempt/conspiracy to possess heroin with intent to distribute (with Article 401 being the object of the attempt/conspiracy), rather than, say, attempt/conspiracy to possess heroin without intent to distribute (with Article 404 being the object of the attempt/conspiracy) — the first is a § 4B1.2-qualifying predicate, he quickly reminds us; the second is not. As for the judge's reliance on Ramos Rivas, Martínez claims that this decision has zero relevance because (in his words) Ramos Rivas does not hold that "all Article 406 convictions ... reclassified from Article 401 are drug trafficking offenses."

The government, contrastingly, argues that the district judge got everything exactly right. Puerto Rico law, the government writes, directs courts to "tie" a defendant's Article 406 attempt/conspiracy conviction to a substantive "base offense" under Puerto Rico's CSA "to determine the fixed penalty" and then to pick "a penalty not to exceed that maximum." To help with this task, the government continues, Ramos Rivas requires courts to "refer[ ] to the offense in the charging document[ ]" to discern the substantive offense underlying an Article 406 conviction "that [was] reclassified from [another] charge[ ]." Putting these points together, the government repeats that Martínez's plea resulted from an Article 401 possession-with-intent-to-distribute charge that got "reclassified to Article 406." And given the charging document, the judge rightly ruled that Martínez's Article 406 guilty-plea conviction was "for attempting or conspiring to possess" heroin "with intent to distribute" — or so the government insists, noting too that Martínez's 3-year suspended sentence did not "exceed" the pertinent 20-year maximum penalty in Article 401. Ergo, the government concludes, the judge rightly found that Martínez's conviction was a § 4B1.2-qualifying predicate.

As a fallback, the government contends that even if we think Martínez pled guilty to attempting/conspiring to violate Article 401 by means other than possessing heroin with distributive intent — like, for example, by possessing heroin with intent to conceal — we should still affirm his sentence. And that is because, in the government's view, even though our Dávila-Félix opinion says Article 401 "criminalizes actions ... not commonly considered drug trafficking offenses, such as concealment of a controlled substance," see 667 F.3d at 56, a Puerto Rico Supreme Court case predating Dávila-Félix— Puerto Rico v. Rosario Cintrón, 2 P.R. Offic. Trans. 107, 102 D.P.R. 82 (1974) — holds otherwise. Thus, according to the government, we as a panel must overrule Dávila-Félix. Martínez, for his part, claims that the government waived this argument by not raising it in the district court — a contention the government disputes.

Our Take

To state the obvious, Martínez's federal sentence can stand only if his Article 406 attempt/conspiracy conviction constitutes a controlled substance offense under the guidelines — an issue (we say again) that the government had the burden of proving. See ...