U.S. v. Vea-Gonzales

• Decision Date: 13 July 1993
• Docket Number: D,VEA-GONZALE,No. 91-30469,91-30469
• Citation: 999 F.2d 1326
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesusefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1326

999 F.2d 1326

UNITED STATES of America, Plaintiff-Appellee, v. Jesus VEA-GONZALES, Defendant-Appellant.

No. 91-30469.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 4, 1992.

Decided Feb. 22, 1993.

As Amended on Denial of Rehearing

and Rehearing En Banc July 13, 1993.

Brian P. Conry, Portland, OR, for defendant-appellant.

J. Richard Scruggs, Asst. U.S. Atty., Portland, OR, for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before: TANG, BRUNETTI and FERNANDEZ, Circuit Judges.

Opinion by Judge Fernandez

FERNANDEZ, Circuit Judge:

Jesus Vea-Gonzales, also known as Antonio Perez Salizar Torres, appeals his sentence under the Sentencing Guidelines, following his guilty plea to possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). He asserts that a prior offense under 21 U.S.C. § 843(b) (use of a communication facility in facilitation of a drug offense) should not have been used as a predicate offense for career offender purposes. U.S.S.G. § 4B1.1. He also claims that the district court erred when it did not allow him to contest the validity of his prior convictions at sentencing. We find no merit in his first contention. However, we agree with his second contention. Therefore, we vacate his sentence and remand for resentencing.

BACKGROUND

Pursuant to a plea agreement, Vea-Gonzales pled guilty to a single count of cocaine possession with the intent to distribute. Prior to sentencing, he moved for a hearing and discovery so that he could bring a collateral attack on his prior convictions. The district court denied the motion. The presentence report showed his offense level to be 28, adjusted to 26 for acceptance of responsibility. That resulted in a 92 to 115 month sentencing range. However, the report indicated that Vea-Gonzales was a career offender under U.S.S.G. § 4B1.1, based on two drug-related prior convictions. That increased defendant's sentencing range to 210 to 262 months.

At the December 2, 1991 sentencing hearing, the court adopted those conclusions and sentenced Vea-Gonzales to 210 months imprisonment. The court ruled that his 1985 conviction for unlawful use of a communication facility in furtherance of a drug offense, 21 U.S.C. § 843(b), was a predicate "controlled substance offense" for career offender purposes under the Sentencing Guidelines. The court also denied a motion to reconsider its denial of his motion for a hearing to collaterally attack the prior convictions.

STANDARD OF REVIEW

The district court's determination that a defendant is a career offender is subject to de novo review when it involves an interpretation of the Guidelines. United States v. Becker, 919 F.2d 568, 570 (9th Cir.1990), cert. denied, 499 U.S. 911, 111 S.Ct. 1118, 113 L.Ed.2d 226 (1991); see United States v. Blaize, 959 F.2d 850, 851 (9th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2954, 119 L.Ed.2d 576 (1992). We review the court's factual findings at the sentencing hearing for clear error. United States v. Chapnick, 963 F.2d 224, 226 (9th Cir.1992).

DISCUSSION

A. Section 843(b) as a Career Offender Predicate Offense

Under the Guidelines, a defendant qualifies as a career offender if he was at least eighteen years old at the time of the instant offense, the instant offense was a "felony that is either a crime of violence or a controlled substance offense," and he has "at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1. The Guidelines define a controlled substance offense as "an offense under a federal or state law prohibiting the manufacture, import, export, distribution, or dispensing of a controlled substance...." U.S.S.G. § 4B1.2(2). Finally, the Application Notes explain that a controlled substance offense includes "the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." U.S.S.G. § 4B1.2, comment. (n. 1).

Vea-Gonzales argues that his 1985 conviction for unlawful use of a communications It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this [control and enforcement] subchapter or [the import and export] subchapter ... of this [drug abuse and prevention] chapter.

                facility is not a controlled substance offense for purposes of career offender status.   In determining whether a prior conviction supports career offender status, we generally look to the statutory definition of the crime, rather than to the defendant's specific conduct.  Becker, 919 F.2d at 570 (adopting the "categorical approach" of the Supreme Court in Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 2159-60, 109 L.Ed.2d 607 (1990)).   Under 21 U.S.C. § 843(b)
                

This language places section 843(b) within the Guidelines' definition of a controlled substance offense. As an element of the offense, the statute requires that in the course of using a communications facility the defendant must either commit an independent drug crime, or cause or facilitate such a crime. As part of a section 843(b) prosecution, the government may prove that the defendant actually "manufacture[d], import[ed], export[ed], distribut[ed], or dispens[ed] ... a controlled substance." If proven, these acts would constitute an element of the communications facility offense. As such, the statute must be viewed as prohibiting those acts. Thus, because section 843(b) effectively prohibits the same conduct as is prohibited by "controlled substance offenses," the statute is a controlled substance offense for purposes of the career offender guideline.

The result is no different if, instead of proving that the defendant actually committed an independent drug crime, the prosecution instead proves as an element of the section 843(b) offense that the defendant "caus[ed] or facilitat[ed] the commission" of a drug crime, as provided in the statute. ¹ The same result obtains because, if these facts were proven in the context of a prosecution for the underlying drug crime (rather than in a section 843(b) prosecution), the defendant could be found guilty of the underlying drug crime on an aiding and abetting theory. See 18 U.S.C. § 2; see also, e.g., United States v. Mastelotto, 717 F.2d 1238, 1243 n. 2 (9th Cir.1983) (section 2, 18 U.S.C., "states a means of establishing liability but does not itself define a crime"). It would therefore be anomalous to say that, although both the independent drug crime and section 843(b) prohibit the same type of assistance, the former is a controlled substance offense while the latter is not. In either case, the relevant laws effectively prohibit the acts set forth in Guidelines section 4B1.2(2)'s definition of "controlled substance offenses."

Vea-Gonzales argues that "facilitation" under section 843(b) does not require the same mens rea as aiding and abetting a controlled substance offense under the Guidelines' career offender statute and concludes it should not be treated the same way. In United States v. Adler, 879 F.2d 491, 495 (9th Cir.1988), we held that "facilitation" under section 843(b) "is established by showing that use of a communications facility (here, a telephone) made easier or less difficult, or assisted or aided, the narcotics offense." Contrary to Vea-Gonzales's assertion, that level of conduct is of the same quality as that which makes a defendant an aider or abettor. To aid and abet, under 18 U.S.C. § 2, means "to assist the perpetrator of a crime." In order to aid and abet another to commit a crime, "it is necessary that a defendant 'in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seeks by his action to make it succeed.' " United States v. Reese, 775 F.2d 1066, 1072 (9th Cir.1985) Moreover, Vea-Gonzales ignores the fact that section 843(b) requires that a defendant "knowingly or intentionally" further the commission of the drug offense. To prove a section 843(b) violation for using a telephone to facilitate a controlled substance conspiracy, the government must show that defendant "knowingly and intentionally facilitated a [specified drug-related offense] by the use of the telephone." United States v. Turner, 528 F.2d 143, 165 (9th Cir.), cert. denied, 423 U.S. 996, 96 S.Ct. 426, 46 L.Ed.2d 371 (1975). ²

                (citations omitted).   In effect, section 843(b) imposes a discrete penalty for a particular kind of aiding and abetting
                

The cases on which Vea-Gonzales relies to support his position are entirely distinguishable. In United States v. Liranzo, 944 F.2d 73, 79 (2d Cir.1991), the Second Circuit held that the New York criminal facilitation statute could not be a controlled substance offense because it, "unlike the crimes of aiding and abetting, conspiracy, or attempt, ... does not involve the intent to commit the underlying substantive offense." Here that intent is required. In Young v. United States, 936 F.2d 533, 538 (11th Cir.1991), it was held that Alabama's forged prescriptions statute was not a predicate offense because it was unlike the drug trafficking offenses specifically listed in the prior version of Guideline section 4B1.2(2). Alabama's statute could be violated by using a forged prescription to obtain some drugs. Absent a copy of the state indictment, it could not be said that Young's violation was trafficking. Here the offense clearly was trafficking.

Vea-Gonzales also argues that the Guideline's Application Note, which states that the predicate offenses include aiding and abetting, impermissibly exceeds the scope of section 4B1.2(2) itself. In interpreting the Guidelines and their accompanying commentaries, courts are required to consider them together, and, if possible, as consistent with each other. United States v. Anderson, 942...