U.S. v. Bellazerius, s. 93-3157

• Decision Date: 17 June 1994
• Docket Number: Nos. 93-3157,93-3168,s. 93-3157
• Citation: 24 F.3d 698
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dino BELLAZERIUS, a/k/a Angelo Di Adonis, a/k/a Constantine Dino Adonis, a/k/a Charles Wesley Dicken, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Anthony Louis BILLA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 698

24 F.3d 698

UNITED STATES of America, Plaintiff-Appellee, v. Dino BELLAZERIUS, a/k/a Angelo Di Adonis, a/k/a Constantine

Dino Adonis, a/k/a Charles Wesley Dicken,

Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Louis BILLA, Defendant-Appellant.

Nos. 93-3157, 93-3168.

United States Court of Appeals, Fifth Circuit.

June 17, 1994.

Robert F. Barnard, Asst. Federal Public Defender, John T. Mulvehill, Federal Public Defender, New Orleans, LA (court appointed), for appellant Bellazerius.

Herbert W. Mondros Asst. U.S. Atty., Harry Rosenberg, U.S. Atty., New Orleans, LA, for appellee in No. 93-3157.

Anthony Louis Billa, pro se.

Robert F. Barnard, Asst. Federal Public Defender, John V. Mulvehill, Federal Public Defender, New Orleans, LA, for appellant Billa.

Herbert Mondros, Asst. U.S. Atty., Harry Rosenberg, U.S. Atty., New Orleans, LA, for appellee in No. 93-3168.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, Chief Judge, JONES, Circuit Judge, and FULLAM, ^* District Judge.

POLITZ, Chief Judge:

Convicted on guilty pleas of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. Sec. 846, Dino Bellazerius and Anthony L. Billa appeal their sentences. Concluding that the career offender provisions of the Sentencing Guidelines should not have been applied, we vacate the sentences and remand.

Background

Bellazerius told undercover agents with the Drug Enforcement Administration that he and Billa were prepared to "cook" methamphetamine in a laboratory located in a portable building behind Billa's house. The agents gave Bellazerius $800 and were told to pick up two pounds of methamphetamine in a couple of days. The agents opted instead to secure and execute a search warrant on the premises, finding numerous pieces of laboratory equipment and a batch of chemicals, including ephedrine, a precursor of methamphetamine.

Bellazerius and Billa were indicted for conspiracy to manufacture 25 pounds of methamphetamine in violation of 21 U.S.C. Sec. 846. They pleaded guilty to a superseding conspiracy indictment that did not specify quantity. Bellazerius was sentenced to 327 months imprisonment and Billa was sentenced to 262 months. Both timely appealed and the appeals were consolidated.

Analysis

1. Career Offender Enhancement.

Bellazerius and Billa were sentenced as career offenders pursuant to U.S.S.G. Sec. 4B1.1, which provides:

A defendant is a career offender if (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.

Bellazerius and Billa contend that the Sentencing Commission exceeded its statutory authority by including conspiracies to commit controlled substance offenses within the ambit of that guideline. We agree.

The Background Commentary cites 28 U.S.C. Sec. 994(h) as the source of authority for U.S.S.G. Sec. 4B1.1. It states:

28 U.S.C. Sec. 944(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.

28 U.S.C. Sec. 994(h) directs the Commission to promulgate guidelines specifying a sentence of imprisonment at or near the maximum authorized term for a defendant 18 years or older who:

(1) has been convicted of a felony that is--

(A) a crime of violence; or

(B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. Sec. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. Secs. 952(a), 955, and 959), and section 1 of the Act of September 15, 1980 (21 U.S.C. Sec. 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. Sec. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. Secs. 952(a), 955, and 959), and section 1 of the Act of September 15, 1980 (21 U.S.C. Sec. 955a).

The authorizing statute does not include the offense of which Billa and Bellazerius were convicted--conspiracy to violate the narcotics laws, 21 U.S.C. Sec. 846--as a trigger for career offender enhancement.

The Sentencing Commission nevertheless included conspiracies within the reach of U.S.S.G. Sec. 4B1.1. Application Note 1 to Sec. 4B1.1 states that "controlled substance offense" is defined in section 4B1.2, which in turn provides:

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 the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense. ¹

Application Note 1 to Sec. 4B1.2 explains that the term "controlled substance offenses" includes "the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." The guideline definition of "controlled substance offense" is broader than the statutory definition in section 994(h).

The government argues that other statutory provisions, notably section 994(a), provide the requisite authority in the event that section 994(h) falls short. A drug conspiracy does not require proof of an overt act; ² talking alone is enough. If this were a case in which the defendants had done no more than talk, we would be inclined to find the government's position plainly erroneous. Congress intended section 994(h) to reach repeat violent offenders and repeat drug traffickers. ³ A defendant convicted thrice for merely talking about committing a drug offense would be neither. Nor is there justification for treating him as such on the basis of Congress's general directive that the Commission prescribe sentences commensurate with the seriousness of the offense and the criminal history of the offender. ⁴

As noted, however, Bellazerius and Billa did much more than talk; they made extensive purchases to establish a laboratory. Bellazerius has a prior drug conspiracy conviction as well as a conviction for using a communications facility to facilitate a drug offense. Billa has two prior convictions for robbery and one for bank robbery.

This brings us to the inquiry whether the Commission in fact exercised its authority under section 994(a)-(f) in promulgating U.S.S.G. Sec. 4B1.1. Recognizing that there is a circuit split on this question, we agree with our colleagues in the D.C. Circuit who held in United States v. Price ⁵ that it did not.

The Background Commentary states in clear, unambiguous language that U.S.S.G. Sec. 4B1.1 was promulgated to implement section 994(h). In United States v. Heim ⁶ the Ninth Circuit disagreed with Price and held that the commentary did not exclude other sources of authority. ⁷ We are persuaded however, that "when people say one thing, they do not mean another." ⁸ The Sentencing Commission would not have said that section 4B1.1 was intended to implement section 994(h) if it intended the guideline to implement other parts of its enabling legislation as well. By identifying section 994(h) as its source of authority, the Sentencing Commission impliedly disclaimed reliance on other sources of authority. ⁹

Our conclusion is buttressed by the Commission's proposed amendment to the Background Commentary to section 4B1.1. ¹⁰ The amendment, which will take effect unless Congress says otherwise, expands the authority for the guideline. Significantly, the synopsis does not characterize the amendment as one of "clarification." Rather, it characterizes the amendment as a response to Price, noting that the Price court "did not foreclose Commission authority to include conspiracy offenses under the career offender guideline by drawing upon its broader guideline promulgation authority in 28 U.S.C. Sec. 994(a)." That explanation satisfies us that the Commission's present invocation of broader authority to support section 4B1.1 is a prospective application. ¹¹

It is a venerable principle of administrative law that agency "action must be measured by what the [agency] did, not by what it might have done." ¹² Agency action "cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained." ¹³ Pursuant to its authority under section 994(a)-(f), the Commission could have conducted an analysis that found that certain offenders outside the reach of section 994(h) warranted the same punishment as section 994(h) career offenders. Instead of so doing, it mistakenly interpreted section 994(h) to include convictions for drug conspiracies. We cannot uphold a guideline on the basis of authority on which the Commission did not rely at the time of promulgation. Because the Commission promulgated section 4B1.1 under the authority of 28 U.S.C. Sec. 994(h), it is invalid to the extent that its scope exceeds the reach of that section of the statute. The guideline should not have been applied to the defendants herein.

Alternatively, the government contends that any error in the application of the career offender guideline to Bellazerius was harmless because the district court stated that it would have departed upward to the same sentence had section 4B1.1 not applied. That sua sponte determination occurred in an addendum to the written reasons for sentence issued after the sentencing hearing and without the mandated notice to the parties of the possibility of an upward departure. In this posture a departure would not comport with the requirements of Rule 32 of the Federal Rules of Criminal Procedure and any sentence imposed would...