United States v. Roman, Crim. No. 18-489 (KM)
| Decision Date | 19 February 2019 |
| Docket Number | Crim. No. 18-489 (KM) |
| Parties | UNITED STATES OF AMERICA v. RAYFAEL ROMAN, Defendant. |
| Court | U.S. District Court — District of New Jersey |
The defendant, Rayfael Roman, pled guilty to a criminal Information charging that, from September 2017 through February 7, 2018, he conspired to distribute and possess with intent to distribute 500 grams or more of cocaine, contrary to 21 U.S.C. § 841(a) & (b)(1)(B), in violation of 21 U.S.C. § 846. A presentence report was prepared in which he was found, based on prior drug convictions, to be a career offender. See U.S.S.G. § 4B1.1.
Defense counsel lodged a number of objections to the Probation Office's Guidelines calculation, and briefed those objections in a sentencing memorandum to the court. (See DE 20 (submission notice).) The government filed a letter brief in opposition (DE 21 (submission notice)).
On February 13, 2019, the date originally scheduled for sentencing, I heard oral argument on the Guidelines issues. (See DE 22 (minutes).) Because the issues were somewhat complex and merited discussion in a written opinion, I reserved decision and adjourned sentencing until February 20, 2019, at 11 a.m. In the interim, the government filed a supplemental letter brief (DE 23), to which the defendant filed a letter response (DE 24). This Opinion is filed in advance of sentencing, for the guidance of the parties.
(a) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction 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 of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a).1 For these purposes, a "controlled substance offense" is one under a law which "prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance, . . . or possession with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 4B1.2(b).
The Career Offender Guideline boosts the otherwise applicable offense level and provides that the Criminal History Category shall in all cases be VI:
U.S.S.G. § 4B1.1(b) and text following.
Because Mr. Roman's offense of conviction carries a maximum sentence of 40 years' imprisonment, the PSR's application of the Career Offender guideline resulted in a base offense level of 34. The adjusted offense level of 31, together with the mandatory criminal history category of VI, would yield an imprisonment range of 188 to 235 months. i. 21 U.S.C. § 846 conspiracy as a "controlled substance offense"
One of the three numbered prerequisites for application of the Career Offender Guideline is that "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) (quoted above). A "controlled substance offense" is an offense that (1) is punishable by a term of imprisonment that exceeds one year and (2) "prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." Id. § 4B1.2(b).
Mr. Roman contends that his offense of conviction, a conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, does not properly fall within the definition of a "controlled substance offense" and is therefore ineligible for application of the Career Offender Guideline.
There is no dispute that the substantive offense of distribution or possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a), is a "controlled substance offense." See U.S.S.G. § 4B1.2(b) (quoted supra). That commonsense conclusion is corroborated by the enabling statute that is the source of the Career Offender Guideline. That statute instructs the Commission to promulgate a guideline that applies to, inter alia, "an offense described in section 401 of the Controlled Substances Act (21 USC 841) . . . ." 28 U.S.C. § 994(h)(1). The substantive § 841 offense, however, is not Roman's offense of conviction; he pled guilty to a § 846 conspiracy having the § 841(a) offense as its object.
No less an authority than Judge William Pryor, the acting chair of the Sentencing Commission, has authored an opinion holding that the word "prohibits" in the definition of a controlled substance offense must be read broadly. "Prohibit," he wrote, means not only to forbid by statute; it also means to "prevent" or "hinder." United States v. Lange, 862 F.3d 1290, 1295 (11th Cir.2017) (citing Oxford English Dictionary and Webster's Second International Dictionary). It follows that a controlled substance offense "cannot mean only offenses that forbid conduct outright, but must also include related inchoate offenses that aim toward that conduct." Id. For example, "[a] ban on conspiring to manufacture drugs hinders manufacture even though it will ban conduct that is not itself manufacturing." Id. Likewise, the § 846 conspiracy provision is aimed to hinder the object of such a conspiracy, i.e., the distribution or possession with intent to distribute narcotics.
It is not necessary, however, to resort to the dictionary, or to indirect arguments. The commentary to the Career Offender Guideline fills the gap left by the Guideline's failure to mention conspiracy offenses. Application note 1 of the commentary to U.S.S.G. § 4B1.2 defines a "controlled substance offense" to include "aiding and abetting, conspiring, and attempting to commit such [drug or violent] offenses." Id.
A question remains as to whether the definition in the Guideline commentary is valid—i.e., whether its inclusion of a drug conspiracy, which is not explicitly named in the enabling legislation or even the Guideline itself, is ultra vires. That question has split the courts of appeals:
The circuit courts are sharply divided on the question of whether a drug conspiracy conviction can be included as one of the predicate offenses to establish a career offender status under U.S.S.G. § 4B.1. Cf. United States v. Price, 990 F.2d 1367 (D.C.Cir.1993); United States v. Mendoza-Figueroa, No. 93-2867 (8th Cir. June 27, 1994) and United States v. Bellazerius, No. 93-3157 (5th Cir. June 17, 1994), holding that conspiracy conviction cannot be included, with United States v. Heim, 15 F.3d 890 (9th Cir. 1994); United States v. Damerville, No. 93-3235 (7th Cir. June 14, 1994), and United States v. Hightower, No. 93-5117 (3d Cir. May 31, 1994), holding that conspiracy conviction can be included.
United States v. Bryan, 35 F.3d 567 (6th Cir. 1994) ().
The split has become more lopsided in the government's favor, though; other cases holding that a conspiracy conviction is properly treated as a"controlled substance offense" under this Guideline include United States v. Piper, 35 F.3d 611, 618-19 (1st Cir. 1994); United States v. Jackson, 60 F.3d 128, 132-33 (2d Cir. 1995); United States v. Kennedy, 32 F.3d 876, 888-90 (4th Cir. 1994); United States v. Williams, 53 F.3d 769, 772 (6th Cir. 1995); see also United States v. Mendoza-Figueroa, 65 F.3d 691, 694 (8th Cir. 1995) (en banc) ().
The U.S. Court of Appeals for the Third Circuit sits on the pro-government side of the split. See United States v. Hightower, 25 F.3d 182 (3d Cir. 1994). Hightower recognizes that the Commission's authority to promulgate guidelines is circumscribed by statute. Guidelines commentary, the Court said, is further circumscribed, in that its function is solely "to (1) explain or interpret the guidelines, (2) suggest circumstances warranting departure from the guidelines and (3) provide background information on the guidelines." Id. at 185. Thus, to simplify a bit, there is an ordered hierarchy from statute to guideline to commentary. The statute controls over a conflicting guideline; the guideline controls over a conflicting comment or application note.
On the statutory/guideline issue, Hightower examined the text and legislative history and held that 28 U.S.C. § 994(h) was intended to be a floor, not a ceiling, for the definition of a "controlled substance offense." With approval, it cited authority to the effect that § 994(h) was not the sole source of the Commission's authority, and that "[t]he Commission's decision to go beyond the mandate of § 994(h) is also consistent with the legislative history to § 994(h)." 25 F.3d at 186-87 (quoting United States v. Heim, 15 F.3d 830, 832 (9th Cir. 1994)). The Commission, Hightower held, could add non-listed offenses to the definition of a controlled substance offense without creating a fatal clash with the statute.
On the guideline/commentary issue, Hightower held that application note 1 did not clash with the Guideline itself:
We think that the commentary's expansion of the definition of a controlled substance offense to include inchoate offenses is not "inconsistent...
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