United States v. Lewis

• Decision Date: 16 June 2020
• Docket Number: No. 18-1916,18-1916
• Citation: 963 F.3d 16
• Parties: UNITED STATES of America, Appellee, v. Vaughn LEWIS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

963 F.3d 16

UNITED STATES of America, Appellee,

v.Vaughn LEWIS, Defendant, Appellant.

No. 18-1916

United States Court of Appeals, First Circuit.

June 16, 2020

Inga S. Bernstein, with whom Zoraida Fernández and Zalkind Duncan & Bernstein LLP were on brief, Boston, MA, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, Boston, MA, for appellee.

Before Torruella, Thompson, and Kayatta, Circuit Judges.

KAYATTA, Circuit Judge.

Vaughn Lewis was sentenced to 108 months' imprisonment for conspiracy to distribute cocaine after the district court applied a career-offender enhancement. Under § 4B1.1(a) of the United States Sentencing Guidelines (the "Sentencing Guidelines"), this enhancement applies where a defendant has at least two prior felony convictions of a "controlled substance offense." U.S.S.G. § 4B1.1(a). The commentary to § 4B1.2 provides that such offenses include conspiracies and other inchoate crimes. Because we have previously held this commentary authoritative in defining a "controlled substance offense," we affirm Lewis's sentence.

I.

A.

Lewis's charges stem from an investigation into a drug-trafficking conspiracy led by Luis Rivera in Brockton, Massachusetts. ¹

Police began investigating Rivera's drug-supplying operations following a tip provided by a cooperating witness.

On February 22, 2016, the police intercepted communications between Lewis and Rivera in which Lewis arranged to purchase sixty-two grams of cocaine, asking for the "same thing as last time." In another intercepted communication, Rivera told Lewis to meet "where you seen me last" to complete the transaction. While surveilling the address provided, police observed a transaction between Rivera and an unidentified individual driving a gray 2007 Toyota Camry, which turned out to be registered to Lewis's girlfriend, with whom Lewis lived at the time.

On February 26, 2016, law enforcement intercepted another communication between Rivera and Lewis about an additional purchase. The police identified Lewis, who was driving a black 2010 Nissan also registered to his girlfriend, when he met with Rivera.

On June 9, 2016, police executed a search and arrest warrant at Lewis's apartment. In a storage area associated with his apartment, the police found "small amounts of drugs (including cocaine)" as well as "drug paraphernalia," such as a bag containing scales and packaging material. The police additionally uncovered a loaded revolver, three dozen rounds of ammunition, and personal documents belonging to Lewis. Lewis denied ownership of all the items seized from the storage area except for his personal documents. He insisted that the revolver was not his, although he did not contest the firearm enhancement for purposes of his Sentencing Guidelines calculation.

B.

On July 13, 2016, a federal grand jury returned a one-count superseding indictment charging Lewis with conspiracy to distribute cocaine powder in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1). Lewis pleaded guilty to the offense, which carries a statutory maximum term of twenty years' imprisonment.

The Probation Office's Presentence Investigation Report ("PSR") assigned a base offense level of sixteen, pursuant to U.S.S.G. § 2D1.1(c)(12), which it increased by two levels under U.S.S.G. § 2D1.1(b)(1) on account of the discovered revolver, yielding an adjusted offense level of eighteen. The PSR also determined that Lewis qualified as a career offender under the Sentencing Guidelines because: He had two prior Massachusetts felony convictions for controlled substance offenses; he was over the age of eighteen when he committed the instant offense; and the instant offense was a "controlled substance offense." See U.S.S.G. § 4B1.1(a), (b)(3). The PSR used as predicates Lewis's 1998 conviction for two counts of unlawful distribution of cocaine² as well as his 2010 conviction for possession with intent to distribute cocaine and distribution of cocaine.³ Applying the career-offender enhancement increased Lewis's offense level to thirty-two. Finally, the PSR applied a three-level downward adjustment for "acceptance of responsibility" under U.S.S.G. § 3E1.1, which brought Lewis's total offense level down to twenty-nine. Based on Lewis's criminal history category ("CHC") of IV, the PSR calculated Lewis's Guidelines sentencing range ("GSR") to be 151 to 188 months of imprisonment.

Lewis objected to the PSR on several grounds, most notably by challenging his career-offender classification. He argued that his instant conspiracy conviction could not count as a "controlled substance offense" under the Sentencing Guidelines and that existing circuit precedent to the contrary should be reconsidered.

On September 7, 2018, the district court sentenced Lewis to 108 months of imprisonment to be followed by three years of supervised release. The district court adopted the PSR's recommendation classifying Lewis as a career offender under U.S.S.G. § 4B1.1. Applying circuit precedent, the court overruled Lewis's objection to the career-offender designation. It agreed that Lewis's age as well as his instant conviction (conspiracy to distribute cocaine) and predicate offenses (two prior state drug-trafficking offenses) triggered the career-offender enhancement, thus bringing his GSR to a tally of 151 to 188 months of imprisonment.⁴

The district court stressed the seriousness of the offense, including the presence of the gun, and stated that "[r]egardless of whether [Lewis is] a career offender or not, [he has] a history of recidivism," and it needed to "send ... a very clear message ... that [Lewis] cannot continue to sell drugs." The court nevertheless varied Lewis's sentence down to 108 months because his first predicate offense, the 1998 drug conviction, involved the sale of $40-worth of drugs when he was seventeen. The district court judge also stated that "if career offender does not apply, I want this to come back to me to resentence because I am using career offender as an anchor."⁵ On September 14, 2018, Lewis timely appealed.

II.

We review de novo the district court's interpretation and application of the Sentencing Guidelines. United States v. Tavares, 705 F.3d 4, 24 (1st Cir. 2013).

When determining whether to apply a career-offender enhancement under the Sentencing Guidelines, sentencing courts adhere to §§ 4B1.1 and 4B1.2 of the Sentencing Guidelines and their corresponding enabling statute, 28 U.S.C. § 994(h). Under § 4B1.1(a), a defendant qualifies as a "career offender" if (1) "the defendant was at least eighteen years old at the time [he] committed the instant offense"; (2) the instant offense "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" -- known as predicates -- for "either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). Section 4B1.2(b) of the Sentencing Guidelines defines the term "controlled substance offense" as follows: [A]n offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance ... or the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense. Id. § 4B1.2(b).⁶ Crucially for this case, Application Note 1 of the commentary to § 4B1.2, adopted by the United States Sentencing Commission (the "Sentencing Commission"), states that for purposes of applying the career-offender enhancement, both crimes of violence and controlled substance offenses "include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." Id. § 4B1.2, cmt. n.1.⁷

Lewis raises five arguments as to why the career-offender enhancement nevertheless should not apply in his case: First, Application Note 1 is inconsistent with the text of the Sentencing Guidelines and their enabling statute, and therefore following the Application Note amounts to unconstitutional and "[u]nchecked ... [d]eference to the Commission's [i]nterpretation of its [o]wn [r]ules." Second, even if Application Note 1 is not inconsistent with the definition of "controlled substance offense" in § 4B1.2, the Sentencing Commission exceeded its rulemaking authority under § 994(h) by "enlarg[ing] the definition of 'controlled substance offenses' to include conspiracies." Third, his state offenses do not count as predicates for a career-offender enhancement. Fourth, in the event Application Note 1 commands deference, his conspiracy conviction is a categorical mismatch with the generic Sentencing Guidelines conspiracy. And fifth, the district court erred in not acknowledging that it could vary downwardly based on a disagreement with the policy underlying § 4B1.2.

Lewis's first two arguments, and the additional points he makes in support of those arguments,⁸ run headfirst into our prior holdings that "controlled substance offenses" under § 4B1.2 include so-called inchoate offenses such as conspiring to distribute controlled substances. See United States v. Piper, 35 F.3d 611 (1st Cir. 1994) ; United States v. Fiore, 983 F.2d 1 (1st Cir. 1992), abrogated on other grounds by United States v. Giggey, 551 F.3d 27, 28 (1st Cir. 2008) (en banc) (reversing course on whether burglary of something other than a dwelling is a predicate offense); see also United States v. Nieves-Borrero, 856 F.3d 5 (1st Cir. 2017) (holding that following Piper was not plain error). In Fiore, we encountered as a "question of first impression" the issue of whether a prior conviction for conspiracy could qualify as a predicate offense for purposes of the career-offender provisions of the Sentencing Guidelines. 983 F.2d at 1, 4. The defendant in that case contended that his prior convictions for conspiracy to violate a Rhode Island controlled substance act and conspiracy...