U.S. v. Williams

• Decision Date: 29 June 1995
• Docket Number: No. 94-5785,94-5785
• Citation: 53 F.3d 769
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rodney WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 769

53 F.3d 769

UNITED STATES of America, Plaintiff-Appellee, v. Rodney WILLIAMS, Defendant-Appellant.

No. 94-5785.

United States Court of Appeals Sixth Circuit.

Argued April 17, 1995.

Decided May 17, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied June 29, 1995.

Stuart J. Canale (argued) and Joseph C. Murphy, Jr., (briefed), Asst. U.S. Attys., Office of the U.S. Atty., Memphis, TN, for plaintiff-appellee.

Robert C. Brooks (argued and briefed), Office of the Federal Public Defender, Memphis, TN, for defendant-appellant.

Before: MERRITT, Chief Judge; GUY and SILER, Circuit Judges.

SILER, Circuit Judge.

Defendant Rodney Williams appeals the sentence received following his guilty plea to conspiracy to possess with intent to distribute cocaine. Williams argues that the Sentencing Commission exceeded its statutory authority by including conspiracy as a triggering offense for purposes of the career offender provision of the sentencing guidelines. ¹ See USSG Sec. 4B1.1. Additionally, he contends that the district court erred in denying his motion for a downward departure. Based on the following discussion, we affirm the decision below, and adopt the majority position regarding the career offender provision.

I.

Defendant Williams was charged with conspiracy to possess cocaine base with intent to distribute in violation of 21 U.S.C. Sec. 846, and aiding and abetting the possession of cocaine base with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. On December 7, 1993, after an aborted trial, the defendant pleaded guilty to conspiracy to possess cocaine base with intent to distribute.

On the day before the sentencing hearing, Williams filed a motion for a downward departure under USSG Sec. 5K1.1, based upon his attempts to cooperate, which had been allegedly frustrated by the government. Alternatively, Williams moved for additional time to work for the departure. At the sentencing hearing, the government declined to move for a downward departure, stating that Williams had not provided substantial assistance. The district court concluded that the government had the discretion to make a downward departure motion, and declined to depart in the absence of such a motion. The court also denied defendant's motion for additional time, finding that "a substantial amount of time has elapsed since the guilty plea and [the government is] not required to wait indefinitely." The court sentenced Williams as a career offender to 168 months imprisonment and 5 years supervised release.

II.

The district court found that Williams was a career offender based on his conviction for conspiracy to possess cocaine. See USSG Sec. 4B1.1. The defendant did not object to this finding so we review only for plain error. ² United States v. Thomas, 11 F.3d 620, 629 (6th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1570, 128 L.Ed.2d 214 (1994).

The plain error doctrine involves the following analyses:

"First, we are to consider whether an error occurred in the district court. Absent any error, our inquiry is at an end. However, if an error occurred, we then consider if the error was plain. If it is, then we proceed to inquire whether the plain error affects substantial rights. Finally, even if all three factors exist, we must then ... decide whether the plain error affecting substantial rights seriously affected the fairness, integrity or public reputation of judicial proceedings."

United States v. Nelson, 27 F.3d 199, 202 (6th Cir.1994) (quoting Thomas, 11 F.3d at 629). We thus begin by asking whether the district court erred in determining that a conspiracy to possess cocaine may be used to classify the defendant as a career offender under Sec. 4B1.1 of the guidelines.

A. Career Offender Designation

A defendant is a career offender if:

(1) [he] 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) he has at least two prior felony convictions of either a crime of violence or a controlled substance offense....

USSG Sec. 4B1.1 (emphasis added). A "controlled substance offense" is defined, in relevant part, as "an offense under a federal or state law prohibiting ... the possession of a controlled substance ... with intent to distribute, or dispense." USSG Sec. 4B1.2(2). Application Note 1 to Sec. 4B1.2 provides that the term "controlled substance offense" includes the offense of conspiring to commit such an offense.

B. Did the Commission Exceed its Statutory Mandate?

Notwithstanding the express language of the guidelines, defendant argues that his conviction for conspiracy to possess cocaine cannot be used to trigger the career offender guideline, Sec. 4B1.1. Specifically, he contends that the Sentencing Commission's inclusion of conspiracy within the definition of "controlled substance offense" exceeds the mandate of 28 U.S.C. Sec. 994(h), the enabling statute for the career offender guideline.

The career offender guideline "implements [the] mandate" of 28 U.S.C. Sec. 994(h), which is that "certain 'career' offenders, as defined in the statute, receive a sentence of imprisonment 'at or near the maximum term authorized.' " USSG Sec. 4B1.1, comment. (backg'd.) (quoting 28 U.S.C. Sec. 994(h)). Section 994(h) mentions several different controlled substance offenses, but fails to mention the crime of conspiracy.

The court must decide 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). This issue is one of first impression in this circuit.

1. D.C. and Fifth Circuits: Commission Exceeded Mandate

Two circuits have adopted the defendant's argument that drug conspiracies do not trigger the career offender provision because such offenses are not included in Sec. 994(h). See 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); United States v. Price, 990 F.2d 1367, 1369 (D.C.Cir.1993). ³ In Price, the D.C. Circuit emphasized that "a conspiracy to commit a crime involves quite different elements from whatever substantive crime the defendants conspire to commit...." 990 F.2d at 1369. The court also stated that "the Commission may well be free under Sec. 994(a) to specify equally long terms for defendants not covered by Sec. 994(h).... It is clear, however, that in enacting Sec. 4B1 the Commission did not purport to rely on Sec. 994(a)." Id. In Bellazerius, the Fifth Circuit followed this result finding that the Commission "disclaimed reliance on other sources of authority" by "identifying section 994(h) as its source of authority...." 24 F.3d at 702. ⁴ Thus, the court held, "[w]e cannot uphold a guideline on the basis of authority on which the Commission did not rely at the time or promulgation." Id. (citing Securities and Exchange Comm'n v. Chenery Corp., 318 U.S. 80, 93-94, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943)). ⁵

2. Majority Position: Commission Within Statutory Authority

Six circuits have embraced the opposite conclusion holding that the Commission properly used its general authority under Sec. 994(a) to include conspiracy as a predicate or triggering offense. See United States v. Piper, 35 F.3d 611, 615-19 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1118, 130 L.Ed.2d 1082 (1995); United States v Kennedy, 32 F.3d 876, 889-90 (4th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 939, 130 L.Ed.2d 883 (1995); 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); 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); United States v. Allen, 24 F.3d 1180, 1185-87 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 493, 130 L.Ed.2d 404 (1994); 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). These circuits hold that "the guidelines 'implemented,' but did not rely upon Sec. 994(h) as the sole legal authority for promulgating the career offender guidelines." See, e.g., Damerville, 27 F.3d at 257. "Section 994(h) provides the minimum obligation of the Commission and does not prohibit the inclusion of additional offenses that qualify for such treatment." Id.

These courts have also given weight to the legislative history of Sec. 994(h), which declares the intent of Sec. 994(h) as the imposition of " 'substantial prison terms ... on repeat violent offenders and repeat drug traffickers.' " Hightower, 25 F.3d at 185 (quoting S.Rep. No. 225, 98th Cong., 2d Sess. 175 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3358). The legislative history further explains that Sec. 994(h) is " 'not necessarily intended to be an exhaustive list of types of cases in which the guidelines should specify a substantial term of imprisonment, nor of types of cases in which terms at or close to authorized maxima should be specified.' " Piper, 35 F.3d at 618 (quoting S.Rep. No. 98-225, 98th Cong., 1st Sess. 176 (1983), reprinted in 1984 U.S.C.C.A.N 3182, 3359). The First Circuit recently expressed that the legislative history

shows rather clearly that Congress wanted to guide the Commission in a general direction, not merely to instruct it to make a one-time mechanical adjustment.... [T]he overall context suggests that Congress's "mandate" directed the Commission to accord career offender treatment to whatever drug-related crimes the Commission believed to be on a par with the offenses enumerated in section 994(h). And we think that the Commission used the word "mandate" to refer to this broader policy.

Id. at n. 5.

Finally, the Fourth Circuit has noted that the courts must "defer to [the Commission's]...