U.S. v. Gaitan

• Decision Date: 11 February 1992
• Docket Number: Nos. 91-5524,91-5613,s. 91-5524
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mario R. GAITAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Rafael Leos NANEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

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954 F.2d 1005

UNITED STATES of America, Plaintiff-Appellee, v. Mario R. GAITAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Rafael Leos NANEZ, Defendant-Appellant.

Nos. 91-5524, 91-5613.

United States Court of Appeals, Fifth Circuit.

Feb. 11, 1992.

Javier Padilla, San Antonio, Tex. (Court-appointed), for Mario R. Gaitan.

Hugo Xavier De Los Santos, San Antonio, Tex. (Court-appointed), for Rafael Leos Nanez.

LeRoy M. Jahn, Michael W. McCrum, Thomas J. McHugh, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for U.S.

Appeals from the United States District Court for the Western District of Texas.

Before HIGGINBOTHAM and BARKSDALE, Circuit Judges, and LITTLE, District Judge. ¹

BARKSDALE, Circuit Judge.

These consolidated appeals concern the sentencing guidelines' "career offender" enhancement, based, in part, on prior "controlled substance offenses". The issue turns on whether, in determining if a prior conviction is such an offense, its underlying facts, instead of only the offense of conviction, may be considered. Nanez also challenges not being allowed to withdraw his guilty plea. On the plea issue, we AFFIRM; for the sentences, VACATE and REMAND.

I.

Gaitan and Nanez were sentenced in 1990 and 1991, respectively, by different district judges. Both judges concluded that the underlying facts for a conviction could be considered in imposing the career offender enhancement.

A.

Charged with conspiracy to possess, and attempted possession of, more than 1,000 kilograms of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846, Gaitan pleaded guilty to both counts in August 1990. His criminal history included a 1981 federal conviction for conspiracy to possess cocaine with intent to distribute and a 1982 state conviction for possession of marijuana. The presentence investigation report (PSI) concluded that both convictions were controlled substance offenses, and that, therefore, the U.S.S.G. § 4B1.1 career offender sentence enhancement was applicable. ²

Gaitan objected, contending that the state conviction was not a controlled substance offense under the guidelines, because it was for possession, not possession with intent to distribute, as required by § 4B1.2(2). At the sentencing hearing in December 1990, the district court overruled the objection, finding that, for the state conviction, Gaitan had been arrested with 1,284 pounds of marijuana in his pickup truck and that this demonstrated an intent to distribute, not merely possess, the marijuana. Gaitan was sentenced, among other things, to 292 months' imprisonment on each count, to run concurrently.

B.

Charged with distribution of heroin, in violation of 21 U.S.C. § 841(a)(1), Nanez pleaded guilty in January 1991. He had been convicted in 1982 on federal charges of conspiracy to possess and possession with intent to distribute marijuana, and in 1985 on a state charge of possession of heroin. The PSI included these as § 4B1.1 predicate controlled substance offenses, and, accordingly, classified Nanez as a career offender. ³

Nanez, in March 1991, moved to withdraw his plea, contending that it was not knowing and voluntary, because his attorney had not advised him that he might be subject to the enhancement. After a hearing, the district court denied the request, finding that (1) the plea had been knowing and voluntary, (2) Nanez's only objection was to the guidelines, and (3) he had not asserted his innocence or advanced any defenses to the charges.

Nanez objected to the enhancement, contending that the state offense was for possession, not possession with the requisite intent to distribute. In April 1991, the district court overruled the objection, finding that Nanez had been in possession of heroin of a distributable quantity. He was sentenced, among other things, to 168 months' imprisonment.

II.

We consider only the career offender and withdrawal of plea issues. ⁴

A.

A guidelines sentence "must be upheld unless [the defendant] demonstrates that it was imposed in violation of the law, was imposed because of an incorrect application of the Guidelines, or is outside the range of applicable Guidelines and is unreasonable." United States v. Parks, 924 F.2d 68, 71 (5th Cir.1991); see 18 U.S.C. § 3742(e). Interpretation of the guidelines is a question of law, subject to de novo review. E.g., United States v. Castro-Perpia, 932 F.2d 364, 365 (5th Cir.1991). The district court's application of the guidelines to the facts is reviewed for clear error. E.g., United States v. Medina-Saldana, 911 F.2d 1023, 1024 (5th Cir.1990).

A defendant is classified as 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.

U.S.S.G. § 4B1.1. Neither Gaitan nor Nanez disputes that each was at least eighteen at the time of their instant offense, or that their instant offense is a felony controlled substance offense, or that they have at least one prior predicate conviction. Instead, each asserts that he does not have the second prior conviction. In issue are two state convictions: Gaitan, for possession of marijuana; Nanez, possession of heroin. Section 4B1.2, at the time of their sentencings, provided:

The term "controlled substance offense" means an offense under a federal or state law prohibiting the manufacture, import, export, or distribution of a controlled substance (or counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, or distribute.

U.S.S.G. § 4B1.2(2). ⁵ Because the state convictions were not for possession with intent to distribute, the appellants contend that the convictions are not § 4B1.2(2) "controlled substance offenses".

The district court, at each sentencing, examined the facts underlying those convictions and determined that each involved intent to distribute. For example, as reflected in state records introduced at Gaitan's sentencing hearing, his two count state indictment was for possession and possession with intent to deliver (distribute); but, he was convicted only for possession. This notwithstanding, the district court stated that because Gaitan's state conviction was based upon possession of 1,284 pounds of marijuana, this "show[ed] intent to distribute, not merely single [simple] possession." ⁶ Gaitan and Nanez maintain, however, that whether they were convicted for a "controlled substance offense" under § 4B1.2(2) is controlled by looking solely at the offense of conviction, not the underlying conduct.

We review this legal issue de novo; it appears to be one of first impression. ⁷ On the other hand, "crimes of violence" may also result in application of the career offender provisions; and, in that context, this court has, for the § 4B1.1 "instant offense", allowed consideration of such conduct. See, e.g., United States v. Shano, 947 F.2d 1263, 1267-68 (5th Cir.1991), opinion withdrawn and superceded by 955 F.2d 291 (5th Cir.1992); United States v. Goodman, 914 F.2d 696, 699 (5th Cir.1990).

In Goodman, this court considered, for the first time, whether the definitional criteria for "crime of violence" under § 4B1.2(1) was met by possession of a firearm by a convicted felon. 914 F.2d at 698. In holding that all conduct related to the possession could be considered, Goodman relied on two factors. First, the court noted:

Under ... § 1B1.3(b), "to determine the ... applicability of the career offender and criminal livelihood guidelines, the court shall consider all conduct relevant to a determination of the factors enumerated in [§ 4B1.1 and 4B1.2]." The Background to the Commentary indicates that "conduct that is not formerly charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range."

914 F.2d at 699 (citations omitted). Second, the court noted that "[a]dditional authority to consider all conduct relating to the offense is implied in the Commentary to 4B1.2." Id. At that time, the commentary provided:

The Commission interprets [18 U.S.C. § 16's definition of crime of violence] as follows: murder, manslaughter, kidnapping, aggravated assault, extortionate extension of credit, forcible sex offenses, arson or robbery are covered by this provision. Other offenses are covered only if the conduct for which the defendant was specifically convicted meets the above definition. For example, conviction for an escape accomplished by force or threat of injury would be covered; conviction for an escape by stealth would not be covered. Conviction for burglary of a dwelling would be covered; conviction for burglary of other structures would not be covered.

U.S.S.G. App. C, amend. 268. Accordingly, Goodman held that it could "look beyond the face of the indictment and consider all facts disclosed by the record." 914 F.2d at 699. See also withdrawn opinion in Shano, 947 F.2d at 1267-68 (following Goodman ).

This issue was revisited very recently in United States v. Fitzhugh, 954 F.2d 253 (5th Cir.1992). There, we noted that Goodman had applied § 4B1.2 as it existed before the 1989 amendments to the guidelines. Effective November 1, 1989, however, the above quoted commentary was replaced by the following:

"Crime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included where (A) that offense has as an element the use[,] attempted use, or threatened use, of physical force against the person of another, or (B) the conduct set forth in the count of which the...