United States v. Cabrera
| Decision Date | 28 July 2021 |
| Docket Number | 19-3780 |
| Parties | UNITED STATES OF AMERICA v. RAFAEL CABRERA, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
Submitted Pursuant to Third Circuit L.A.R. 34.1 on November 10, 2020
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-13-cr-00048-001) Chief District Judge: Honorable Mark R. Hornak
Before: HARDIMAN, GREENBERG [*] , and SCIRICA, Circuit Judges.
Rafael Cabrera appeals his 220-month sentence, imposed by the District Court after finding Cabrera qualified as a career offender under the 2013 version of the Sentencing Guidelines. Cabrera contends he cannot be a career offender following our decision in United States v. Nasir, 982 F.3d 144 160 (3d Cir. 2020) (en banc), and, as a result, requests resentencing. We will vacate his sentence and remand for a de novo resentencing.
Cabrera was convicted of conspiring to distribute and possess with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(b)(B)(i) and 846. He was sentenced in October 2014 and re-sentenced in November 2019.[1] The court concluded at resentencing that Cabrera met the definition of a career offender under United States Sentencing Guidelines Manual § 4B1.1 (Nov. 1, 2013) because (a) he was at least 18 years of age when he committed the offense, (b) the offense of conviction was a controlled substance felony, and (c) Cabrera's two prior fleeing and eluding convictions qualified as crimes of violence. At re-sentencing, Cabrera's Guideline Range was 262-327 months' imprisonment. The court varied downward and imposed a 220-month term of incarceration. Cabrera appealed from his resentencing, contending the District Court did not properly consider whether his prior convictions qualified as crimes of violence under U.S.S.G. § 4B1.2 after various changes in the law.
After the parties submitted briefing on the pending appeal, our en banc Court decided Nasir. In Nasir, the en banc Court overturned our longstanding precedent in United States v. Hightower, 25 F.3d 182 (3d Cir. 1994), and held that the definition of "controlled substance offense" provided in U.S.S.G § 4B1.2(b) does not include inchoate offenses, such as Nasir's attempt conviction. Cabrera filed a motion for summary reversal in April 2021, contending he was no longer a career-criminal in light of Nasir. The Government timely responded, contending Cabrera had forfeited this issue.
Cabrera contends he no longer qualifies as a career offender after Nasir because his offense of conviction, conspiracy, is an inchoate offense that no longer qualifies as a requisite controlled substance offense under U.S.S.G § 4B1.2(b). The Government acknowledges Nasir's holding, yet argues Cabrera forfeited this issue. Should we disagree, the Government urges, we should hold off on making a decision until the Supreme Court has had the opportunity to review Nasir and like cases or perhaps until the Sentencing Commission addresses §4B1.2. The Government points out that in 2018 the Sentencing Commission sought comment on proposed revisions to §4B1.2 and Application Note 1. But the Sentencing Commission cannot act on any proposals because it lacks the necessary quorum of four voting members. The Government also suggests that the Supreme Court may soon consider the issue. But there is no indication that the Court will do so. And, of course, any predictions on future actions are speculative and will result in considerable delay.
Although the Government requests we delay our decision, it stated in its response to Cabrera's motion for summary reversal, "[i]f this court believes the District Court should adjudicate the effect of Nasir on Cabrera's career-offender status in the first instance, any remand should call for a de novo resentencing." Of the possible alternatives, we think the better resolution is to vacate Cabrera's sentence and remand this matter to the District Court for de novo resentencing to allow the District Court to adjudicate the effect of Nasir on Cabrera's career offender status in the first instance.
Although acknowledging the effect of Nasir, the Government contends Cabrera's argument-that he no longer qualifies as a career offender because his offense of conviction cannot be a predicate controlled substance offense under Nasir-was forfeited. We believe Cabrera's delay in raising the issue is excused under the extraordinary circumstance exception.
A defendant is a career offender under the Guidelines if, inter alia, the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a). Cabrera's offense of conviction is conspiracy to distribute and possess with intent to distribute heroin under 21 U.S.C. §§ 841 and 846.[2] In Nasir, the Third Circuit, sitting en banc, held that inchoate offenses are not included in the "controlled substance offenses" set forth in U.S.S.G § 4B1.2(b). 982 F.3d at 160.[3]Inchoate offenses include conspiracy to commit a crime. Id. at 156 n.10 (citing Offense, Black's Law Dictionary (11th ed. 2019)); see also, United States v. Salahuddin, 765 F.3d 329, 341 (3d Cir. 2014) (citing Iannelli v. United States, 420 U.S. 770, 777 (1975)) (concluding the same). Thus, Cabrera contends, conspiracy to distribute and possess with intent to distribute heroin is not a controlled substance offense under § 4B1.2(b).
Cabrera did not raise this issue-whether his offense of conviction still qualified as a controlled substance offense under § 4B1.2(b)-until after appellate briefing was complete. But failure to raise it may be excused under the extraordinary circumstance exception. United States v. Albertson, 645 F.3d 191, 195 (3d Cir. 2011). This exception may be applied where the circumstances weigh in favor of allowing the untimely issue to be heard-the most relevant factors include "whether there is some excuse for the failure to raise the issue in the opening brief; how far the opposing party would be prejudiced; and whether failing to consider the argument would lead to a miscarriage of justice or undermine confidence in the judicial system." Id. (citation omitted).
In Albertson, the appellant challenged the term of his supervised release and first raised the challenge to his supervised release conditions in his reply brief, filed around one month after we issued the decision on which Albertson's challenge to conditions was based. Albertson, 645 F.3d at 195-6; Appellant's Reply Brief in Albertson, 2010 WL 8514653, at **5-6 (filed Mar. 2, 2010). We considered Albertson's delayed challenge to his conditions under the emergency circumstance exception because we determined the Government would not be prejudiced and failure to correct the plain error would result in a miscarriage of justice. Albertson, 645 F.3d at 196.
Like in Albertson, here the Government will not be prejudiced and not correcting the error will lead to a miscarriage of justice. First, the Government has been given a chance to respond to Cabrera's Nasir argument, so there is no prejudice to the Government in considering it. Second, as further explained below, a Guidelines calculation error is ordinarily a plain error resulting in a miscarriage of justice if not corrected. Balancing the factors set forth in Albertson, we believe Cabrera's delay is excused.[4]
The Government contends we should ignore the impact of Nasir on Cabrera's career-offender status because (a) Cabrera failed to identify the plain error standard of review in his post-Nasir motion for summary reversal and (b) Cabrera did not adequately demonstrate that the court plainly erred. In light of the convoluted procedural context of this case, we do not believe Cabrera's failure to identify the standard in his post-Nasir motion for summary reversal is fatal to Cabrera's argument.
The first two plain error prongs are satisfied. We consider an error to be "plain" for plain error review as long as the error is plain at the time of appellate review. Henderson v. United States, 568 U.S. 266, 273 (2013). As explained, Nasir, 982 F.3d at 160 overturned decades-long precedent to hold the controlled substance definition does not include inchoate offenses. Accordingly, on our review, the District Court, without having had the benefit of Nasir, clearly erred in deeming Cabrera's offense of conviction a career-offender predicate-controlled substance offense and calculating Cabrera's Guideline range with the career offender enhancement.
The Supreme Court has explained that Guidelines calculation errors typically satisfy plain error's third and fourth prongs. See Molina-Martinez v. United States, 136 S.Ct. 1338, 1346 (2016) (); see also Rosales-Mireles v. United States, 138 S.Ct. 1897, 1911 (2018) (). But "unusual circumstances" may rebut this "presumption" of prejudice, United States v. Aguirre-Miron, 988 F.3d 683, 689 (3d Cir. 2021), and "[t]here may be instances where countervailing factors satisfy the court of appeals that the fairness, integrity, and public reputation of the proceedings will be preserved absent correction," Rosales-Mireles, 138 S.Ct. at 1909. We are not convinced unusual circumstances or countervailing factors overcome the presumed prejudice here.
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