United States v. Stewart

• Decision Date: 31 July 2014
• Docket Number: No. 13–10048.,13–10048.
• Citation: 761 F.3d 993
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Matthew STEWART, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

761 F.3d 993

UNITED STATES of America, Plaintiff–Appellee,

v.Matthew STEWART, Defendant–Appellant.

No. 13–10048.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 2014.

Filed July 31, 2014.

Jeremy M. Delicino, Salt Lake City, UT, for Defendant–Appellant.

Peter S. Levitt (argued), Assistant United States Attorney, Elizabeth O. White, Appellate Chief, Daniel G. Bogden, United States Attorney, Las Vegas, NV, for Plaintiff–Appellee.

Appeal from the United States District Court for the District of Nevada, Lloyd D. George, District Judge, Presiding. D.C. No. 2:10–cr–00564–LDG–VCF–1.

Before: SIDNEY R. THOMAS, RAYMOND C. FISHER and MARSHA S. BERZON, Circuit Judges.

OPINION

FISHER, Circuit Judge:

Matthew Stewart pled guilty to two counts of distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1). Because he had two prior state felony convictions for controlled substance offenses, the district court sentenced him as a career offender. SeeUnited States Sentencing Guidelines Manual (U.S.S.G.) §§ 4B1.1, 4B1.2. Stewart appeals his sentence, arguing that the Sentencing Commission exceeded its statutory authority under 28 U.S.C. § 994(h) by including state convictions as predicate offenses for purposes of defining a career offender. He further contends his sentence is substantively unreasonable because of the very low purity of the controlled substance he sold and the career offender guidelines' over-representation of his criminal history. We once again hold that the Commission's career offender guidelines are a permissible interpretation of the relevant statutes. See United States v. Rivera, 996 F.2d 993, 994–97 (9th Cir.1993). We further conclude that the district court was mistaken about the impact of the purity of the controlled substance, but that Stewart's sentence was nonetheless reasonable under the totality of the circumstances. We therefore affirm.

I

In July 2010, federal Drug Enforcement Agency (DEA) officers learned from a confidential source that Stewart was potentially a “gallon producer” and distributor of gammahydroxybutyric acid (GHB). Acting on this tip, the DEA initiated a series of controlled buys of GHB from Stewart. On three separate occasions over the next several months, Stewart sold water bottles—each containing a detectable amount of GHB dissolved in water—to an undercover officer: a single water bottle for $160; eight water bottles for $1,700; and 16 water bottles containing approximately two gallons of total liquid for an unknown price. Agents arrested Stewart and conducted a search of his residence, where they seized additional water bottles containing liquid with a detectable amount of GHB. Laboratory testing on all of the seized bottles confirmed the presence of GHB in 11,359 milliliters of total liquid, or about three gallons.

Stewart pled guilty to two counts of distributing a controlled substance under 21 U.S.C § 841(a)(1). Absent application of the career offender guidelines, Stewart would have had a criminal history category of III. But because Stewart had two prior state felony convictions for drug distribution, he qualified as a career offender with an automatic criminal history category of VI. SeeU.S.S.G. § 4B1.1(a)-(b). Stewart's first conviction was for the sale of ecstasy tablets in 2002, and his second was for the sale of cocaine in 2005. Based on the 20–year statutory maximum term of imprisonment for the offense to which Stewart pled guilty, 21 U.S.C. § 841(b)(1)(C), the career offender guidelines reset Stewart's offense level to 32, seeU.S.S.G. § 4B1.1(b)(3). Applying a criminal history category of VI and a three-level downward adjustment for acceptance of responsibility, the district court calculated a guidelines range of 151 to 188 months of imprisonment. Although the district court found that a sentence within this range would be appropriate, it nonetheless sentenced Stewart to 120 months' imprisonment. Stewart timely appealed his sentence.

II

The Sentencing Commission's authority for the career offender guidelines rests on 28 U.S.C. § 994. Section 994(h) directs the Commission to “assure” that the guidelines specify a sentence “at or near” the statutory maximum for a defendant who: (1) has been convicted of a crime of violence or a controlled substance offense; and (2) has two or more prior felony convictions, each of which is a crime of violence or a controlled substance offense. See28 U.S.C. § 994(h).

Carrying out this mandate, the Commission promulgated the career offender guidelines, which categorize an adult defendantas a “career offender” when the defendant (1) is convicted of “a felony that is either a crime of violence or a controlled substance offense” and (2) “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); see also United States v. Mitchell, 624 F.3d 1023, 1026 (9th Cir.2010). The guidelines define a “controlled substance offense” as “an offense under federal or state law” that “prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance,” or possession of a controlled substance with the intent to do the same. U.S.S.G. § 4B1.2(b).

Stewart acknowledges that he was properly categorized as a career offender under the guidelines, based on his federal conviction for distributing GHB and his two prior state drug distribution convictions. SeeU.S.S.G. §§ 4B1.1, 4B1.2. He argues, however, that the career offender guidelines are invalid because they conflict with the plain language of § 994(h), which he interprets as requiring a guidelines sentence at or near the statutory maximum only for defendants with two prior federal, not state, drug trafficking convictions. His argument relies on the language of § 994(h), which specifies career offender treatment only for a defendant who has two or more previous convictions for a controlled substance offense “described in” certain federal controlled substances statutes:

The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years old or older and—

(1) has been convicted of a felony that is—

(A) a crime of violence; or

(B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and chapter 705 of title 46; and

(2) has previously been convicted of two or more prior felonies, each of which is—

(A) a crime of violence; or

(B) an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a), 955, and 959), and chapter 705 of title 46.

28 U.S.C. § 994(h). On the strength of this language, Stewart argues that the Commission exceeded its authority when it adopted guidelines imposing career offender status for previous state controlled substance convictions.

We rejected this very argument in United States v. Rivera, 996 F.2d 993, 994–97 (9th Cir.1993), and we now reaffirm Rivera 's continuing validity. In Rivera, we held that the guidelines were a “sufficiently reasonable” interpretation of the ambiguous language of § 994(h), because this section is not limited to predicate offenses under federal law but extends to conduct involving controlled substances that could have been charged federally. See id. We further noted that the career offender guidelines were consistent with Congress' intent to punish repeat drug traffickers regardless of whether their predicate convictions were state or federal. See id. at 996.

Stewart argues that Rivera cannot be reconciled with the Supreme Court's subsequent decision in United States v. LaBonte, 520 U.S. 751, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997), because Rivera applied an erroneous standard of review. We do not agree that LaBonte undermines Rivera 's holding. LaBonte held that the Commission's definition of “offense statutory maximum” in § 4B1.1 was invalid because it was “at odds with the plain language” and “ordinary meaning” of 28 U.S.C. § 994(h). 520 U.S. at 756, 757, 117 S.Ct. 1673 (quoting Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990)) (internal quotation marks omitted). The Court noted that “Congress has delegated to the Commission ‘significant discretion in formulating’ ” the sentencing guidelines, but the Commission's promulgations must nonetheless “bow to the specific directives of Congress.” Id. at 757, 117 S.Ct. 1673 (quoting Mistretta v. United States, 488 U.S. 361, 377, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989)); see also United States v. Tercero, 734 F.3d 979, 982 (9th Cir.2013) (explaining that LaBonte invalidated a guidelines provision as being “in direct conflict” with the authorizing statute).

Admittedly, we applied a different standard of review in Rivera, asking “whether the Sentencing Guideline [was] ‘sufficiently reasonable’ in light of the congressional directive to the Commission,” 996 F.2d at 994, rather than whether there was a direct conflict with the statute. Nevertheless, our inquiry was consistent with the analysis applied in LaBonte because a guideline that constitutes a “sufficiently reasonable” interpretation of the enabling statute cannot be in direct conflict with the statute's plain mandate.

In Rivera, we first found § 994(h) to be ambiguous, because “it is not at all clear that Congress intended to exclude state [controlled substance] convictions” as predicate offenses triggering career offender status. 996 F.2d at 995–96. Only then did we conclude that the Commission's interpretation was a sufficiently reasonable implementation of congressional intent. See id. Although § 994(h) could be interpreted as Stewart prefers—that career offender status does not...