U.S. v. Weir

• Decision Date: 10 May 1995
• Docket Number: No. 93-3430,93-3430
• Citation: 51 F.3d 1031
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Norman WEIR, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1031

51 F.3d 1031

UNITED STATES of America, Plaintiff-Appellant, v. Norman WEIR, Defendant-Appellee.

No. 93-3430.

United States Court of Appeals, Eleventh Circuit.

May 10, 1995.

Douglas N. Frazier, U.S. Atty., I. Randall Gold, Tamara Phipps, Asst. U.S. Attys., Orlando, FL, for appellant.

James T. Skuthan, Asst. Federal Public Defender, Orlando, FL, for appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before BLACK and BARKETT, Circuit Judges, and RONEY, Senior Circuit Judge.

RONEY, Senior Circuit Judge:

We hold that a conviction of conspiracy to possess with intent to distribute marijuana is a "controlled substance offense" for purposes of career criminal sentence enhancement under section 4B1.1 of the United States Sentencing Guidelines. This decision conflicts with a decision of the D.C.Circuit, upon which the district court relied in finding that defendant-appellee was not a career offender for enhancement purposes. United States v. Price 990 F.2d 1367 (D.C.Cir.1993). It puts us in accord, however, with most of the circuits that have decided the issue since the imposition of defendant-appellee's sentence. United States v. Piper, 35 F.3d 611, 616-17 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1118, 130 L.Ed.2d 1082 (1995) (rejecting Price ); United States v. Hightower, 25 F.3d 182, 186-87 (3d Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 370, 130 L.Ed.2d 322 (1994) (same); United States v. Kennedy, 32 F.3d 876, 888 (4th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 939, 130 L.Ed.2d 883 (1994) (same); United States v. Damerville, 27 F.3d 254, 256-57 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 445, 130 L.Ed.2d 355 (1994) (same); United States v. Baker, 16 F.3d 854, 857 (8th Cir.1994) (same); Dyer v. United States, 23 F.3d 1421, 1424 n. 2 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 136, 130 L.Ed.2d 78 (1994) (same); United States v. Heim, 15 F.3d 830, 831-32 (9th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 55, 130 L.Ed.2d 14 (1994) (same); United States v. Allen, 24 F.3d 1180, 1186 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 493, 130 L.Ed.2d 404 (1994) (same).

Only one other circuit appears to support Price. United States v. Bellazerius, 24 F.3d 698, 701-02 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 375, 130 L.Ed.2d 326 (1994).

Norman Weir pled guilty to bank robbery in violation of 18 U.S.C. Sec. 2113. Weir previously had been convicted of a prior bank robbery and conspiracy to possess with the intent to distribute marijuana. Section 4B1.1 requires that the instant offense and the two prior convictions used to define a career offender for enhancement purposes must be for either a crime of violence or for a controlled substance offense. Weir's prior bank robbery conviction and the instant bank robbery both constitute crimes of violence. The probation officer considered Weir's marijuana conviction to be a controlled substance offense as the second prior conviction. The defense, citing Price, objected to the classification of Weir's conviction as a controlled substance offense because it involved a conspiracy, not a substantive offense. The district court, noting a lack of contrary precedent, followed Price and sentenced Weir to forty-six months imprisonment, three years supervised release, and restitution. The Government appealed.

Weir contends that 28 U.S.C. Sec. 994(h), the statute that the Guideline's Commission commentary cites as section 4B1.1's mandate, does not specifically refer to the conspiracy statute when delineating which statutes' violation provide for the imposition of career offender status. Therefore, the Commission overstepped its mandate when it classified drug conspiracies as controlled substance offenses.

The Government argues, rightfully, in our judgment, that the majority of circuits, not Price, properly decided the issue. First, although the commentary to section 4B1.1 states that the career offender provision is implementing the mandate of 28 U.S.C. Sec. 994(h), it does not suggest that section 994(h) is the only mandate for that provision. 28 U.S.C. Sec. 994(a), the Guidelines' enabling statute, provides independent grounds for the career offender provision, and the language of this section grants sufficient authority to the Commission to include drug conspiracies in its definition of controlled substance offenses. Second, the legislative history indicates that the specific offenses listed in section 994(h) are not necessarily exhaustive. Finally, common sense dictates that conspiring to distribute drugs constitutes a controlled substance offense. See United States v. Kennedy, 32 F.3d at 888, citing S.Rep. No. 225, 98th Cong., 2d Sess. 176 (1984), reprinted in 1984 U.S.C.C.A.N. 3182, 3359; United States v. Parson, 955 F.2d 858, 867 (3d Cir.1992).

We note the defendant argues that the Government waived its right to appeal the failure of the district court to enhance his sentence. In United States v. Jones, 899 F.2d 1097, 1102-03 (11th Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 275, 112 L.Ed.2d 230 (1990), we held that a party's failure to object to the sentencing court's findings of fact and conclusions of law waives any objection for appeal purposes, unless this would result in manifest injustice....