United States v. García-Cartagena

Decision Date06 March 2020
Docket NumberNo. 18-1629,18-1629
Citation953 F.3d 14
Parties UNITED STATES of America, Appellee, v. Héctor GARCÍA-CARTAGENA, a/k/a/ Arana, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Franco L. Pérez-Redondo, Research & Writing Specialist, San Juan, PR, with whom Eric A. Vos, Federal Public Defender, San Juan, PR, and Vivianne M. Marrero-Torres, Assistant Federal Public Defender, Supervisor, Appeals Section, were on brief, for appellant.

Thomas F. Klumper, Assistant United States Attorney, Senior Appellate Counsel, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Torruella, Thompson, and Kayatta, Circuit Judges.

THOMPSON, Circuit Judge.

When most federal prisoners get out of prison, their first few years of freedom are supervised (by the United States Probation Department) and conditional: among other things, they may not commit another "Federal, State, or local crime." 18 U.S.C. § 3583(d). If they do commit a new crime, even if they're not convicted (i.e., found guilty beyond a reasonable doubt after a full-dress trial or plea), a federal district court may find they more-likely-than-not committed it, revoke their supervised release, and send them back to prison. So it was for Hector García-Cartagena — who in November 2016, after a seven-year stint in federal prison, began his eight-year term of supervised release. Within a few months, he was arrested twice: first for possessing drugs with intent to distribute, then for domestic abuse under Puerto Rico law. Commonwealth prosecutors dropped the most serious charges in Puerto Rico court (where he pled guilty to lesser offenses). Nonetheless, the federal district judge found he committed a "crime of violence" and a "controlled substance offense" (as defined in the federal sentencing guidelines)"Grade A" violations of supervised release carrying the stiffest guideline penalties, see U.S.S.G. § 7B1.1(a)(1) — and sentenced García to three more years in prison.

On appeal, García challenges the "Grade A" label. The government defends it. To resolve their dispute (since our on-point case law is murky, and other circuits have split on the issue), we clarify the approach courts should use to determine if a crime is a "controlled substance offense" or a "crime of violence" under § 7B1.1(a) — the same "categorical approach" we've used to identify whether state or federal law crimes fit the bill in other contexts, with one caveat: once the court identifies a "crime of violence" or "controlled substance offense," it may consider any reliable evidence (subject to the flexible constraints applicable in revocation hearings) to decide if the defendant committed that crime. With that framework in hand, we affirm García's sentence.

LEGAL LANDSCAPE

Let's start with the basics. To recommend sentences for supervised release violators, the United States Sentencing Guidelines rank new crimes with letter grades (A, B, and C). The highest grade (A), with the highest (recommended) range of sentences, is reserved for new criminal "conduct constituting [ ] a federal, state, or local offense punishable by a term of imprisonment exceeding one year that (i) is a crime of violence, (ii) is a controlled substance offense," or falls within two other classes of serious crimes not relevant here. U.S.S.G. § 7B1.1(a)(1). Under § 4B1.2:

(a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that — (1) has as an element the use, attempted use, or threatened use of physical force1 against the person of another [the "force clause"], or (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c) [the "enumerated offense" clause].
(b) 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 the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. § 4B1.2 ; see § 7B1.1, cmt. nn. 2, 3 (stating that "crime of violence" and "controlled substance offense" are "defined in § 4B1.2 (Definitions of Terms Used in Section 4B1.1)").

Those terms appear throughout the guidelines — not only in § 7B1.1(a)(1), but also in various other provisions that increase a defendant's recommended sentence based on "crime[s] of violence" and "controlled substance offense[s]" and also incorporate the definitions in § 4B1.2. To apply those other provisions, we use the "categorical approach" minted in Taylor v. United States, 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (holding that a similar definition of "violent felony" in the Armed Career Criminal Act, or ACCA, "requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense"). See, e.g., United States v. Ramos-González, 775 F.3d 483, 504 (1st Cir. 2015) ; United States v. Dávila-Félix, 667 F.3d 47, 56 (1st Cir. 2011) ; United States v. Bryant, 571 F.3d 147, 157 (1st Cir. 2009) (all applying § 4B1.1's "Career Offender" enhancement for defendants convicted of a "crime of violence" or "controlled substance offense" for the third time); see also United States v. Martínez-Benítez, 914 F.3d 1, 2 (1st Cir. 2019) (ditto for § 2K2.1(a)(4), increasing the guideline sentence for defendants who commit firearms offenses with a prior conviction for a "controlled substance offense" or "crime of violence"). We've used the approach to characterize both past convictions and crimes "freshly committed," United States v. Bell, 966 F.2d 703, 704–06 (1st Cir. 1992), even when the defendant wasn't convicted of the covered offense, see United States v. Gary, 74 F.3d 304, 316–17 (1st Cir. 1996) (using the categorical approach to decide that an offense was a "crime of violence" under § 4B1.4(b)(3)(A), which increases a defendant's guideline sentence if he possessed a firearm "in connection with ... a crime of violence" or "controlled substance offense").

Although Taylor interpreted the definition of "violent felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), we adopted its approach early on to classify "crime[s] of violence" under the Career Offender guideline (§ 4B1.1), because, we explained, "[t]he definition of a ‘violent felony’ for purposes of the [ACCA] [was] the same in all material respects as the definition of a ‘crime of violence’ " in § 4B1.2(a) (which § 4B1.1 incorporates). Bell, 966 F.2d at 704. After all, the force clause of " section 4B1.2 employ[s] exactly the same language that Taylor relied on to justify an inference that a categorical approach was intended": the phrase defining a crime of violence as an offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. at 704–05 & n.3 (emphasis added). That phrase — "has as an element" — was crucial in Taylor; since the ACCA (in its force clause) defines "violent felony" as a felony that " ‘has as an element’ — not any crime that, in a particular case, involves — the use or threat of force," the Court held that the whole definition (including the "the phrase ‘is burglary’ " in the "enumerated offense" clause) must "refer[ ] to the elements of the statute of conviction, not to the facts of each defendant's conduct." Taylor, 495 U.S. at 600–01, 110 S.Ct. 2143. We held that the same "elements"-focused language in § 4B1.2(a), coupled with the commentary, demanded the same elements-based (or "categorical") approach to classifying offenses as "crime[s] of violence" for purposes of the "Career Offender" enhancement (§ 4B1.1). See Bell, 966 F.2d 703.2

Although § 4B1.2(b) used different language, we soon adopted the same method to classify crimes as "controlled substance offense[s]" under § 4B1.1. See United States v. Piper, 35 F.3d 611, 619 (1st Cir. 1994) (reasoning that the approach "mirror[ed] Congress's approach" to serious drug offenses under the ACCA and avoided the "practical difficulties" involved in excavating the facts underlying past convictions).

Under the categorical approach, we look only to the "elements" of the crime — i.e., "the constituent parts of [the] crime's legal definition" ("the things the prosecution must prove beyond a reasonable doubt to sustain a conviction") — and not "how a given defendant actually perpetrated the crime," to decide if the offense, as defined in the statute, matches § 4B1.2's criteria for a "crime of violence" or "controlled substance offense." Mathis v. United States, ––– U.S. ––––, 136 S. Ct. 2243, 2248, 2251–52, 195 L.Ed.2d 604 (2016) (internal citations omitted); accord United States v. Martinez, 762 F.3d 127, 133 (1st Cir. 2014) ("A state offense qualifies as a crime of violence only if its elements are such that ... a person convicted of the offense has ‘necessarily’ been found guilty of conduct that meets [ § 4B1.2's] definition."). We call the test "categorical" because it "function[s] as an on-off switch" so a "crime [will] qualify as a predicate in all cases or in none." Descamps v. United States, 570 U.S. 254, 268, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).

To decide if a conviction is for a covered offense, we take three steps. First, we ask if a conviction under the statute requires (as pertinent here) either the violent use of force against someone or possession of a controlled substance with intent to distribute; if yes, the offense counts. See United States v. Mohamed, 920 F.3d 94, 101 (1st Cir. 2019) (asking if the state statute "require[d] an intent to distribute [a...

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