U.S. v. Hightower

• Decision Date: 08 October 1993
• Docket Number: No. 93-5117,93-5117
• Citation: 25 F.3d 182
• Parties: UNITED STATES of America, v. Kevin HIGHTOWER, Appellant. . Submitted Under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 182

25 F.3d 182

UNITED STATES of America, v. Kevin HIGHTOWER, Appellant.

No. 93-5117.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) Oct. 8, 1993.

Decided May 31, 1994.

David E. Schafer, Asst. Federal Public Defender, Trenton, NJ, for appellant.

Michael Chertoff, Edna B. Axelrod, R. David Walk, Jr., John J. Farmer, Jr., Office of U.S. Atty., Newark, NJ, for appellee.

Before: HUTCHINSON, COWEN and NYGAARD, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Kevin Hightower pleaded guilty to one count of conspiracy to distribute cocaine base, in violation of 21 U.S.C. Secs. 841(a)(1) and 846, and one count of possession of a firearm by a felon, in violation of 18 U.S.C. Sec. 922(g)(1). The district court sentenced him as a career offender to 21 years and 10 months of imprisonment, and Hightower appealed from his judgment of conviction and sentence. We affirmed, but later granted rehearing to consider whether a defendant convicted of conspiracy to distribute a controlled dangerous substance is subject to the career offender provisions of the U.S. Sentencing Guidelines. ¹ Our review is plenary. United States v. Parson, 955 F.2d 858, 863 (3d Cir.1992).

I.

Section 4B1.1 of the Sentencing Guidelines classifies a defendant 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. Sec. 4B1.1. The question before us involves the second requirement, specifically, the scope of offenses that fall within the category of a "controlled substance offense." ² The commentary to Sec. 4B1.1 states:

28 U.S.C. Sec. 994(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. The legislative history of this provision suggests that the phrase "maximum term authorized" should be construed as the maximum term authorized by statute....

U.S.S.G. Sec. 4B1.1, comment. (backg'd.) (emphasis added). Based on this commentary, Hightower maintains that the definition of a controlled substance offense is circumscribed by the list of offenses enumerated in "the statute," 28 U.S.C. Sec. 994(h)(1)(B), which does not include conspiracy to distribute a controlled substance in violation of 21 U.S.C. Sec. 846.

Nevertheless, the commentary to Sec. 4B1.1 also states that a controlled substance offense is defined in Sec. 4B1.2, which 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 a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

U.S.S.G. Sec. 4B1.2(2). The commentary to Sec. 4B1.2 expands the definition to include "the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." U.S.S.G. Sec. 4B1.2, comment, n. 1. Conspiracy to distribute a controlled substance is thus included as a predicate offense for sentencing under the career offender provisions of the Sentencing Guidelines. The question then becomes whether the Sentencing Commission exceeded its statutory authority by expanding the definition of a "controlled substance offense" beyond those offenses specifically listed in 28 U.S.C. Sec. 994(h)(2)(B).

II.

Unlike the guidelines themselves or policy statements, the commentary is not directly authorized in the Sentencing Reform Act of 1984. See Stinson, --- U.S. at ----, 113 S.Ct. at 1917; 28 U.S.C. Secs. 994(a)(1)-(2); U.S.S.G. Ch. 1, Pt. A, 1. In Stinson v. United States, --- U.S. ----, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993), however, the Supreme Court addressed "the authoritative weight to be accorded to the commentary to the Sentencing Guidelines." Id. at ----, 113 S.Ct. at 1916. Using the analogy of "an agency's interpretation of its own legislative rule," id. at ----, 113 S.Ct. at 1919, the Stinson Court asserted that

commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.

Id. at ----, 113 S.Ct. at 1915; see also United States v. Joshua, 976 F.2d 844, 855 (3d Cir.1992) (comparing Sentencing Commission's commentary to administrative agency's interpretation of an ambiguous statute).

Section 1B1.7 of the Sentencing Guidelines attributes the commentary with three different functions:

First, it may interpret the guideline or explain how it is to be applied. Failure to follow such commentary could constitute an incorrect application of the guidelines, subjecting the sentence to possible reversal on appeal. See 18 U.S.C. Sec. 3742. Second, the commentary may suggest circumstances which, in the view of the Commission, may warrant departure from the guidelines. Such commentary is to be treated as the legal equivalent of a policy statement. Finally, the commentary may provide background information, including factors considered in promulgating the guideline or reasons underlying promulgation of the guideline. As with a policy statement, such commentary may provide guidance in assessing the reasonableness of any departure from the guidelines.

U.S.S.G. Sec. 1B1.7. The commentary at issue in Stinson was "interpretive and explanatory" of a portion of the career offender guideline and thus was controlling. See --- U.S. at ----, 113 S.Ct. at 1917-18. ³

III.

A.

In this case, the statutory provision referred to in the commentary, 28 U.S.C. Sec. 994(h), provides:

(h) The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years old or older and--

(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. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and section 1 of the Act of September 15, 1980 (21 U.S.C. 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. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and section 1 of the Act of September 15, 1980 (21 U.S.C. 955a).

The plain language of the statute thus requires the Sentencing Commission to assure that certain offenders receive maximum or near-maximum terms of imprisonment. The problem is that a "controlled substance offense" is not explicitly defined in Sec. 994(h)(1)(B).

The legislative history states that the intent of Sec. 994(h) was to impose "substantial prison terms ... on repeat violent offenders and repeat drug traffickers." S.Rep. No. 225, 98th Cong., 2d Sess. 175 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3358; see also United States v. Whyte, 892 F.2d 1170, 1174 (3d Cir.1989). Furthermore, the Senate Report states that subsection (h) is "not necessarily intended to be an exhaustive list of types of cases in which ... terms at or close to authorized maxima should be specified." S.Rep. No. 225, 98th Cong., 2d Sess. 176 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3359; see also Parson, 955 F.2d at 867.

B.

We have held that state court convictions can serve as controlled substance offenses under the career offender guideline, and that the Sentencing Commission has the authority to expand the scope of crimes of violence beyond the original congressional definition. In United States v. Whyte, 892 F.2d 1170 (3d Cir.1989), the defendant contended that, for purposes of the career offender guideline, controlled substance offenses were limited to the federal statutes listed in 28 U.S.C. Sec. 994(h) and did not include "convictions obtained under similar or analogous state statutes." Id. at 1174. Whyte rejected this argument, surmising that

[i]f Congress had wanted only convictions under particular federal statutes to serve as predicate offenses, it could have said so quite simply. Instead, Congress referred to 'offenses described in'--not 'convictions obtained under'--those statutes.

Id. Additionally, the court reasoned that the purpose underlying Sec. 994(h) and the possibility of prosecution under 21 U.S.C. Sec. 841 for the same conduct weighed in favor of counting the defendant's state convictions towards career offender status. Id. In Parson, we concluded that Sec. 994(h) served "as a floor for the career offender category, not as a ceiling," 955 F.2d at 867, and that Sec. 994(h) did not bar the Sentencing Commission from including additional predicate offenses within the guideline definition of crimes of violence.

The Commission's authority to implement sentencing policy through the guidelines, however, is not coextensive with its authority to do so through commentary. As discussed above, the function of commentary is to (1) explain or interpret the guidelines, (2) suggest circumstances warranting departure from the guidelines and (3) provide background information on the guidelines. In contrast, "[t]he guidelines provide direction as to the appropriate type of punishment--probation, fine, or term of imprisonment--and the extent of the punishment imposed." Stinson, --- U.S. at ----, 113 S.Ct. at 1917. If "commentary and the guideline it interprets are...