IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50658
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS LIGHTBOURN,
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Texas, El Paso
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June 4, 1997
Before JOLLY, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Carlos Lightbourn pled guilty to conspiracy to possess
marijuana with intent to distribute. He was sentenced as a career
offender to a 200-month term of imprisonment and a five-year term
of supervised release. Lightbourn appeals his sentence. He argues
that he was erroneously sentenced as a career offender, contrary to
our holding in United States v. Bellazerius, 24 F.3d 698 (5th Cir.
1994). In the alternative, Lightbourn argues that his sentence is
in violation of the Ex Post Facto Clause of the Constitution. We
find no error in the sentence and affirm.
I
At his rearraignment, Lightbourn agreed to the following basic
facts. On November 1, 1995, he met with an undercover DEA agent in
El Paso for the purpose of collecting $60,000 cash owed to him from
a previous drug transaction. Lightbourn had supplied over 300
pounds of marijuana to John Bennett, Jr. in July 1995 and believed
the agent to be an employer of Bennett who would supply the money
because Bennett was already in custody for the conspiracy.
During the meeting, the DEA agent asked Lightbourn to direct
him to a particular warehouse where the marijuana had been loaded
in order to ensure that Lightbourn was indeed involved in the
conspiracy. On the trip to the warehouse, the agent informed
Lightbourn that he had only $43,000 in cash and would return 75
pounds of the marijuana to make up the difference. Lightbourn
agreed to this arrangement and was told that the marijuana was in
the agent’s car at the original meeting location.
The two men returned to the meeting location and Lightbourn
introduced the agent to Stephen Bosworth, who was sitting in
Lightbourn’s car. Lightbourn and Bosworth then discussed the best
method for obtaining and transporting the marijuana and finally
concluded that they would take the cash and return later, in a
different car, to retrieve the marijuana.
Lightbourn and Bosworth then agreed to follow the DEA agent to
a nearby hotel to get the cash. Upon arrival, the agent gave a
pre-arranged arrest signal and Lightbourn and Bosworth were
arrested.
Lightbourn’s presentencing report recommended that the career-
offender sentence enhancement be applied because the instant
2
offense was a felony controlled-substance offense and Lightbourn
had two countable prior felony controlled-substance conspiracy
convictions.1 Lightbourn objected to this recommendation, relying
on United States v. Bellazerius. In his supplemental objections,
he argued that to sentence him as a career offender would violate
the Ex Post Facto Clause. The district court overruled both
objections and sentenced Lightbourn as a career offender under the
guidelines.2
II
A
Lightbourn was sentenced as a career offender under the
authority of § 4B1.1 of the 1995 version of the Sentencing
Guidelines.3 The district court applied this section because
1
Lightbourn also had a third previous felony conspiracy
conviction, but, because of the age of the conviction, it was not
used in determining his criminal history category or his career
offender status.
2
The district court adopted the factual findings and guideline
application stated in the PSR with a minor factual exception and
with the exception of granting a three-level reduction for
acceptance of responsibility instead of the proposed two-level
reduction.
3
Section 4B1.1 reads, in relevant part,
A defendant is a career offender if (1) the
defendant 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) the defendant has
at least two prior felony convictions of
either a crime of violence or a controlled
substance offense.
3
Lightbourn was convicted of a felony controlled substance offense
and because he had two previous convictions for felony controlled
substance offenses. See U.S. Sentencing Guidelines Manual § 4B1.1
(1995). All three relevant convictions were convictions for
participation in drug conspiracies.
Lightbourn contends that, in the light of this court’s ruling
in Bellazerius, § 4B1.1 does not apply to his case. In
Bellazerius, a panel of this court found that § 4B1.1 was
explicitly enacted to carry out the mandate of 28 U.S.C. § 994(h),4
which required enhanced sentences for certain offenses but did not
encompass drug conspiracies. See Bellazerius, 24 F.3d at 700-02
(citing U.S. Sentencing Guidelines Manual § 4B1.1 Background
Commentary (1994)). The panel therefore concluded that the
Sentencing Commission acted beyond the scope of the authority
granted by 28 U.S.C. § 994(h) when it included drug conspiracies in
the list of offenses that trigger career offender status. The
Bellazerius court held that conspiracies could not be used in
determining whether a sentence should be enhanced under the
section. Id. at 701-02.
4
28 U.S.C. § 994(h) requires the Commission to promulgate
guidelines setting the term of imprisonment at or near the maximum
authorized term if a defendant over the age of 18 is convicted of
a felony that is a crime of violence or that is a drug offense set
out in three enumerated statutes (not including the statute
violated by Lightbourn) and if the defendant has two previous
offenses meeting the same criteria.
4
If the law had remained unchanged, then clearly, in this drug
conspiracy conviction, we would be bound by our decision in
Bellazerius. After the decision was rendered, however, the
Sentencing Commission amended the Background Commentary to § 4B1.1.
This amendment is known as amendment 528 and became effective
November 1, 1995. It altered the statement of the source of
authority for § 4B1.1 from strict reliance on 28 U.S.C. § 994(h) to
reliance upon the “general guideline promulgation authority” found
in 28 U.S.C. § 994(a)-(f). See United States Sentencing Guidelines
Manual § 4B1.1 Background Commentary (1995).5 The Bellazerius
court was fully aware of the proposed amendment and expressly noted
its pending passage in support of its conclusion that the
guideline, in its pre-amendment state, did not reach the defendant
in the case. Bellazerius, 24 F.3d at 702. Moreover, in
Bellazerius, we noted that
5
Amendment 528 specifically changes the background commentary
to section 4B1.1 to state that the guideline
implements [the] directive [of 28 U.S.C. §
994(h)], with the definition of a career
offender tracking in large part the criteria
set forth in 28 U.S.C. § 994(h). However, in
accord with its general guideline promulgation
authority under 28 U.S.C. § 994(a)-(f), and
its amendment authority under 28 U.S.C. §
994(o) and (p), the Commission has modified
this definition in several respects to focus
more precisely on the class of recidivist
offenders for whom a lengthy term of
imprisonment is appropriate and to avoid
“unwarranted sentencing disparities among
defendants with similar records who have been
found guilty of similar criminal conduct.”
5
Pursuant to its authority under section 994(a)-(f), the
Commission could have conducted an analysis that found
that certain offenders outside the reach of section
994(h) warranted the same punishment as section 994(h)
career offenders. Instead of so doing, it mistakenly
interpreted section 994(h) to include convictions for
drug conspiracies. We cannot uphold a guideline on the
basis of authority on which the Commission did not rely
at the time of promulgation. Because the Commission
promulgated section 4B1.1 under the authority of 28
U.S.C. § 994(h), it is invalid to the extent that its
scope exceeds the reach of that section of the statute.
Id. The amendment to the sentencing guidelines speaks directly to
this point and effectively eliminates the concerns of the
Bellazerius Court.6
The amended version of § 4B1.1, as noted, draws its authority
from the general guideline promulgation powers found at 28 U.S.C.
§ 994(a)-(f) and is not limited to the enumerated offenses found at
28 U.S.C. § 994(h). The Sentencing Commission has now lawfully
included drug conspiracies in the category of crimes triggering
classification as a career offender under § 4B1.1 of the Sentencing
Guidelines. We therefore affirm the district court’s finding that
Lightbourn was a career offender, subject to sentence enhancement.
B
Lightbourn next contends that the application of the amended
version of § 4B1.1 violates the Ex Post Facto Clause because his
participation in the conspiracy ended prior to the November 1,
1995, effective date of the amendment. This argument is without
6
See also United States v. Price, 990 F.2d 1367 (D.C. Cir.
1993).
6
merit. Lightbourn was arrested on November 1, 1995, when he
engaged in the criminal conduct discussed above. This conduct was
clearly in furtherance of the drug conspiracy.
The PSR effectively shows: (1) that there was an agreement
between two or more persons to violate the narcotics laws; (2) that
Lightbourn knew of the conspiracy and intended to join it; and (3)
that Lightbourn voluntarily participated in the conspiracy. See
United States v. Inocencio, 40 F.3d 716, 725 (5th Cir. 1994).
Furthermore, Lightbourn never effectively withdrew from the
conspiracy. See United States v. Caicedo, 103 F.3d 410, 412 (5th
Cir. 1997). Finally, it is of no consequence that Bosworth was not
convicted of conspiracy. See United States v. Klein, 560 F.2d
1236, 1242 (5th Cir. 1977).
We find that on November 1, 1995, Lightbourn was acting in
furtherance of the drug conspiracy and therefore hold that the
application of the amended version of § 4B1.1 does not violate the
Ex Post Facto Clause of the United States Constitution.
III
In conclusion, the amendment to the Background Commentary of
§ 4B1.1 abrogates the concerns expressed by this court in
Bellazerius and allows convictions for drug conspiracies to be
included in the determination whether career offender status is
warranted. Lightbourn falls within the scope of the amended
guideline. The district court therefore did not err in sentencing
him as a career offender. Furthermore, because he engaged in
7
actions related to the conspiracy on the effective date of the
amendment, there is no violation of the Ex Post Facto Clause. The
sentence imposed by the district court is therefore
A F F I R M E D.
8