U.S. v. Cruz, 88-6171
| Decision Date | 25 August 1989 |
| Docket Number | No. 88-6171,88-6171 |
| Citation | 882 F.2d 922 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Louis CRUZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bobby Flores (Court Appointed), McAllen, Tex., for defendant-appellant.
Louis Cruz, Corpus Christi, Tex., pro se.
Paula Offenhauser, Kathlyn Giannaula, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
Louis Cruz pled guilty to possession of approximately 3 kilograms of marihuana with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(D), and was sentenced to a 51-month prison term. On appeal, he challenges only his sentence. He contends that the district court misapplied the sentencing guidelines, see 18 U.S.C. Sec. 3553(a), by finding that he was a "career offender" under Guideline Sec. 4B1.1 and by failing to deduct two points from his career offender offense level for acceptance of responsibility as provided in Guideline Sec. 3E1.1. Finding no error in the sentence imposed, we affirm.
Cruz first challenges the district court's finding that he was a "career offender" within the meaning of the Guidelines. Guideline Sec. 4B1.1 provides that:
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.
The district court concluded that Cruz was at least 18 years old, that his instant offense was a "controlled substance offense," and that he had two prior felony convictions, one which qualified as a "crime of violence" and another which qualified as a "controlled substance offense." Cruz argues that the district court erred by finding that his prior convictions for burglary and illegal investment qualified, respectively, as a "crime of violence" and a "controlled substance offense."
Cruz contends that his prior conviction for burglary of a habitation under Tex.Penal Code Ann. Sec. 30.02 (Vernon 1979) does not qualify as a "crime of violence" within the meaning of Sec. 4B1.1 because there was no evidence that force was used or threatened during the commission of that offense. This argument is meritless.
The term "crime of violence" as used in Sec. 4B1.1 is defined under 18 U.S.C. Sec. 16. Guideline Sec. 4B1.2(1). Section 16 provides:
The term "crime of violence" means--
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
18 U.S.C. Sec. 16 (emphasis added).
In United States v. Flores, 875 F.2d 1110, 1113 (5th Cir.1989), we concluded that burglary of a dwelling was a "crime of violence" under Sec. 4B1.1, noting that "[w]henever a private residence is broken into, there is always a substantial risk that force will be used." Importantly, Application Note 1 of the Commentary to Sec. 4B1.2 specifically states that burglary of a dwelling is a "crime of violence." The district court therefore correctly concluded that Cruz' prior conviction for burglary of a habitation qualified as a "crime of violence" under Sec. 4B1.1.
Cruz next argues that the district court erred by finding that his prior conviction for illegal investment under Tex.Rev.Civ.Stat.Ann. art. 4476-15 Sec. 4.052 (Vernon Supp.1989) qualified as a "controlled substance offense." We disagree.
The term "controlled substance offense" as used in Guideline Sec. 4B1.1 is defined as "an offense identified in 21 U.S.C. Secs. 841, 845b, 856, 952(a), 955, 955a, 959; and similar offenses." Guideline Sec. 4B1.2(2) (emphasis added). Application Note 2 of the Commentary to Sec. 4B1.2 provides:
"Controlled substance offense" includes any federal or state offense that is substantially similar to any of those listed in subsection (2) of the guideline. These offenses include manufacturing, importing, distributing, dispensing, or possessing with intent to manufacture, import, distribute, or dispense, a controlled substance (or a counterfeit substance). This definition also includes aiding and abetting, conspiring, or attempting to commit such offense, and other offenses that are substantially equivalent to the offenses listed.
Under Texas law, a person commits the offense of illegal investment if he knowingly or intentionally (1) expends funds that he knows are derived from the commission of certain enumerated narcotics offenses, or (2) finances or invests funds he knows or believes are intended to further the commission of such an offense. Tex.Rev.Civ.Stat.Ann. art. 4476-15 Sec. 4.052(a). 1 Section 4.052(a)(1) lists as applicable narcotics offenses Secs. 4.05(c) and 4.051(c), which proscribe the delivery and possession of more than fifty pounds of marihuana.
Cruz admits that he pled guilty to the offense of illegal investment but argues that it does not constitute a "controlled substance offense." We find sufficient evidence in the record to support the trial court's finding that Cruz was convicted under Section 4.052(a)(2) for financing or investing funds which he knew or believed were intended to further the commission of a listed narcotics offense--the possession or delivery of over fifty pounds of marihuana. The offense reports of this incident, which were admitted into evidence without objection, indicate that Cruz and another individual named Vaquera drove to a rest area where undercover officers had agreed to sell Vaquera marihuana; that Vaquera had already given the officers over $8,000; and that when he arrived with Cruz he had $10,000 with which he intended to purchase 100 pounds of marihuana. The probation officer testified at the sentencing hearing that eighty-eight pounds of marihuana were actually involved. Cruz disputes the extent of his involvement in the transaction and argues that there is insufficient evidence to support the trial court's ruling that his conduct amounted to a conspiracy to possess marihuana with intent to distribute.
To determine whether Cruz' prior conviction for illegal investment qualifies as a "controlled substance offense," we need not decide whether the facts underlying that conviction would support a conviction for conspiracy to possess marihuana with intent to distribute. We need only decide whether the offense defined under Tex.Rev.Civ.Stat. art. 4476-15 Sec. 4.052(a)(2) is "substantially similar" to the offenses listed as "controlled substance offenses" in Guideline Sec. 4B1.2(2). See Application Note 2 of the Commentary to Sec. 4B1.2. Section 4.052(a)(2) proscribes financing or investing funds known or believed to be intended to further the commission of a listed narcotics offense. We find that this offense is "substantially equivalent to the offenses listed" in Sec. 4B1.2(2), which includes aiding and abetting, conspiring, and attempting to commit a listed narcotics offense. See Application Note 2 of the Commentary to Sec. 4B1.2. We therefore affirm the district court's finding that Cruz' prior conviction for illegal investment qualified as a "controlled substance offense," holding as a matter of law that a conviction under Tex.Rev.Civ.Stat.Ann. art. 4476-15 Sec. 4.052(a)(2) constitutes a "controlled substance offense" under Guideline Sec. 4B1.1. In reaching our conclusion, we express no opinion as to whether a conviction under subsection (1) of the Texas statute, which proscribes the expenditure of funds derived from the commission of a listed narcotics offense, qualifies as a "controlled substance offense." Finding that Cruz has two prior felony convictions, one which qualifies as a "crime of violence" and another which constitutes a "controlled substance offense," we affirm the trial court's ruling that Cruz is a "career offender" within the meaning of Guideline Sec. 4B1.1.
Finally, Cruz contends that the district court erred by failing to deduct two-points from his career offender offense level for acceptance of responsibility as provided in Guideline Sec. 3E1.1.
Although this is a question of first impression in our circuit, both the First and Third Circuits have recently concluded that the Guidelines do not provide for a two-level reduction for acceptance of responsibility from the sentencing levels set for career offenders. See United States v. Alves, 873 F.2d 495 (1st Cir.1989); United States v. Huff, 873 F.2d 709 (3d Cir.1989). We agree.
Instructions for applying the Sentencing Guidelines are found in Guideline Sec. 1B1.1. First, a base offense level is taken from the Chapter Two guideline section most applicable to the statute of conviction. Secs. 1B1.1(a) and (b). Adjustments, including the adjustment for acceptance of responsibility, are then made to obtain the total offense level. Secs. 1B1.1(c)-(e). The defendant's criminal history category is then determined. Sec. 1B1.1(f). Next, the court considers whether the career offender or criminal livelihood provisions of Chapter 4, Part B apply, which may provide an alternative offense level and criminal history category. Sec. 1B1.1(f). "If the offense level for a career criminal from the table below [the career criminal table] is greater than the offense level otherwise applicable, the offense level from the table below shall apply." Sec. 4B1.1. "The career offender table has no provisions for adjustments and a career offender's criminal history category is always...
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