United States v. Piper

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 94-1197

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID PIPER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Selya and Cyr, Circuit Judges,

and Zobel,* District Judge.

Peter Clifford, for appellant.

Michael M. DuBose, Assistant United States Attorney, with

whom Jay P. McCloskey, United States Attorney, was on brief, for

appellee.

September 8, 1994

*Of the District of Massachusetts, sitting by designation.

SELYA, Circuit Judge. This appeal asks us to revisit,
SELYA, Circuit Judge.

in a slightly altered form, the question of whether conspiracy

convictions qualify as triggering and/or predicate offenses for

purposes of the career offender provisions of the federal

sentencing guidelines.1 This question has divided the courts of

appeals. On reflection, we adhere to the majority view and

continue to treat certain conspiracy convictions as includable in

determining career offender status. Because the district court

took this (legally proper) approach, and because appellant's only

non-sentence-related assignment of error is impuissant, we affirm

the judgment below.

I. BACKGROUND

On September 2, 1993, in proceedings pursuant to Fed.

R. Crim. P. 11, defendant-appellant David Piper waived indictment

and pleaded guilty to a two-count information charging him with

conspiracy to possess with intent to distribute over 100

kilograms of marijuana, see 21 U.S.C. 841(a)(1), 841(b)(1)(B),

846, and using or carrying a firearm in connection with a drug-

trafficking crime, see 18 U.S.C. 924(c). On February 23, 1994,

the district court imposed a 25-year prison sentence on count 1,

terming Piper a career offender. The court also sentenced Piper

1The career offender guideline applies to an adult defendant
who commits a felony "that is either a crime of violence or a
controlled substance offense," having previously incurred "at
least two prior felony convictions of either a crime of violence
or a controlled substance offense." U.S.S.G. 4B1.1 (Nov. 1993).
We sometimes call the offense of conviction the "triggering
offense" in contradistinction to the "predicate offenses," i.e.,

the prior felony convictions.

2

to an incremental 5-year prison term on the weapons charge.

Piper appeals, alleging error in both the acceptance of

his guilty plea and the application of the career offender

guideline.

II. THE RULE 11 CHALLENGE

Appellant's initial claim of error need detain us only

in the respect that it requires us to make clear that specific

intent to effectuate an underlying substantive offense, and not

an intent to commit the substantive offense oneself, is all that

is necessary to sustain a conspiracy conviction. Before reaching

this vexing point, we first dispatch some necessary

preliminaries.

Although Piper now contends that the district court

erred in accepting a plea to the information, he did not seek to

withdraw his plea below. Consequently, he can prevail on this

afterthought ground only if he demonstrates a substantial defect

in the Rule 11 proceeding itself. See United States v. Mateo,

950 F.2d 44, 45 (1st Cir. 1991); United States v. Parra-Ibanez,

936 F.2d 588, 593-94 (1st Cir. 1991). Appellant's attempts to

meet this exacting standard lack force.

Appellant advances three main arguments in support of

this assigned error,2 each of which centers around the drug-

trafficking count. He asserts that the district court (1)

2Grasping at straws, appellant suggests a variety of other
ways in which he deems the Rule 11 proceeding flawed. These
suggestions range from the jejune to the frivolous. None merit
discussion.

3

mischaracterized the nature and elements of the offense, thereby

frustrating his ability to understand the charge to which he pled

guilty, in derogation of Fed. R. Crim. P. 11(c)(1); (2) failed to

ensure that his plea was voluntary, in derogation of Fed. R.

Crim. P. 11(d); and (3) accepted his plea despite the lack of an

adequate factual basis, in derogation of Fed. R. Crim. P. 11(f).

We have inspected the plea colloquy with care, tested

it in the crucible of Rule 11, see, e.g., Parra-Ibanez, 936 F.2d

at 590 (explaining that the "strictures of Rule 11 . . . are

calculated to insure the voluntary and intelligent character of

the plea"); United States v. Allard, 926 F.2d 1237, 1244-45 (1st

Cir. 1991) (identifying core Rule 11 concerns: absence of

coercion, understanding of charges, and knowledge of consequences

of guilty plea), and find no hint of any mischaracterization. To

the precise contrary, the lower court proceeded in a meticulous

fashion to ensure that appellant understood the gist of the

information. A judge's responsiveness to a defendant's

articulated concerns is of great importance in Rule 11

proceedings. See, e.g., United States v. Buckley, 847 F.2d 991,

999 (1st Cir. 1988) (explaining need for court to respond

appropriately to defendant's questions at change-of-plea

hearing), cert. denied, 488 U.S. 1015 (1989). Here, the judge

not only fulfilled the core requirements of Rule 11, but also

furnished suitably detailed explanations when appellant sought

clarification of certain points. And, moreover, the record is

replete with indications that appellant understood the charges,

4

faced up to them, and chose voluntarily to plead guilty.

We need not paint the lily. An appellate court must

read the transcript of a Rule 11 colloquy with practical wisdom

as opposed to pettifoggery. See United States v. Medina-

Silverio, F.3d , (1st Cir. 1994) [No. 93-1800, slip

op. at 15] (emphasizing that there is no "formula of 'magic

words' in meeting the requirements of Rule 11"]; Allard, 926 F.2d

at 1245 (similar); see also Fed. R. Crim. P. 11(h) (explaining

that, to warrant vacation, irregularities in a plea-taking

proceeding must affect the defendant's "substantial rights").

Viewed from that perspective, appellant's first two arguments are

meritless. The district court's performance in explaining the

charges and ensuring that defendant understood them easily passes

muster under Rule 11(c) and (d). The plea was voluntary.

The third prong of appellant's assignment of error

requires special mention, for the argument advanced indicates

some confusion over what proof is required in order to sustain a

conspiracy conviction. Appellant's thesis is that, while he

agreed to help steal the marijuana, he did not have an intent to

distribute it himself, and, thus, could not be guilty of (and

could not validly plead guilty to) the conspiracy charge.

This thesis does not receive a passing grade. A

specific intent to distribute drugs oneself is not required to

secure a conviction for participating in a drug-trafficking

conspiracy. This conclusion is neither new nor original. In

United States v. Rivera-Santiago, 872 F.2d 1073 (1st Cir.), cert.

5

denied, 492 U.S. 910 & 493 U.S. 832 (1989), we upheld a

conviction for conspiracy to distribute marijuana based on

evidence that the defendant had agreed to store a large quantity

of the drug in his house, even though no evidence had been

adduced that he intended to play a role in its distribution. See

id. at 1081. In the process, we explained that:

an individual could be found to be part of a
conspiracy to possess and distribute
[marijuana] even though he neither directly
participated in interstate trafficking nor
knew the precise extent of the enterprise.
The fact that he participated in one . . .
link of the distribution chain, knowing that

it extended beyond his individual role, was

sufficient.

Id. at 1079 (emphasis supplied).

Any confusion in this area of the law may arise from a

possible ambiguity in certain of our earlier decisions. In

Rivera-Santiago, for example, we stated, in the paragraph

immediately preceding the language quoted above, that "[i]n order

to prove that a defendant belonged to and participated in a

conspiracy, the government must prove two kinds of intent; intent

to agree and intent to commit the substantive offense." Id. This

"double intent" formulation neither began with Rivera-Santiago,

see, e.g., United States v. Drougas, 748 F.2d 8, 15 (1st Cir.

1984), nor ended there, see, e.g., United States v. Mena-Robles,

4 F.3d 1026, 1031 (1st Cir. 1993), cert. denied, 114 S. Ct. 1550

(1994); United States v. Nueva, 979 F.2d 880, 884 (1st Cir.

1992), cert. denied, 113 S. Ct. 1615 (1993). Insofar as we can

determine, the formulation made its First Circuit debut in United

6

States v. Flaherty, 668 F.2d 566 (1st Cir. 1981), where the panel

stated that "[t]wo types of intent must be proved: intent to

agree and intent to commit the substantive offense." Id. at 580.

For this proposition the panel cited United States v. United

States Gypsum Co., 438 U.S. 422 (1978). But Gypsum says

something slightly different: "[i]n a conspiracy, two different

types of intent are generally required the basic intent to

agree . . . and the more traditional intent to effectuate the

object of the conspiracy." (emphasis supplied). Id. at 444

n.20. Though slight, the difference is important. Its

significance comes into focus in the case before us.

Perhaps the best way to illustrate the difference is by

asking a question: does one who intentionally agrees to

undertake activities that facilitate commission of a substantive

offense, but who does not intend to commit the offense himself,

have the requisite intent to be convicted of conspiracy?

According to a literal reading of Flaherty a reading which we

are sure the Flaherty court never intended and which, to our

knowledge, has never been implemented in this circuit the

answer to the question would be in the negative. Under such a

reading, a defendant must have the "intent to commit the

substantive offense" in order to ground a conviction. But under

Gypsum, by contrast, the answer to the question is plainly in the

affirmative, for our hypothetical defendant "inten[ded] to

effectuate the object of the conspiracy."

Gypsum's formulation not only makes good sense, but it

7

is also good law. In practice, our cases have hewed to that

line. See, e.g., Rivera-Santiago, supra; United States v.

Moosey, 735 F.2d 633, 635-36 (1st Cir. 1984) (upholding

conviction for conspiracy even though defendant personally had

not intended to, and did not, participate in the underlying

substantive offense of interstate trafficking).

We conclude, therefore, that the "double intent"

language contained in Flaherty and its progeny, correctly read,

merely rehearses the Gypsum formulation, and requires that the

government prove an intent to agree and an intent to effectuate

the commission of the substantive offense. A defendant need not

have had the intent personally to commit the substantive crime.

Here, the record shows beyond hope of contradiction

that appellant, whether or not he meant personally to participate

in the distribution of the contraband, nonetheless knowingly

assisted in its asportation, with foreknowledge that the

conspiracy extended beyond the theft to the eventual disposal at

some later date of the purloined marijuana (totaling over 145

kilograms). He thus possessed the requisite mens rea.

That ends the matter. Though a district court has an

unflagging obligation to assure itself that a guilty plea is

grounded on an adequate factual foundation, see, e.g., United

States v. Ruiz-Del Valle, 8 F.3d 98, 102 (1st Cir. 1993), it need

not gratuitously explore points removed from the elements of the

offense. Because an adequate factual basis existed to undergird

appellant's plea, his assignment of error collapses.

8

III. THE CAREER OFFENDER CHALLENGE

We now reach the heart of the appeal. We choose to

present our analysis in four segments. First, we set the stage.

Second, we address the status of conspiracy convictions under the

career offender guideline. Next, we consider the propriety of

including state narcotics convictions as predicate offenses.

Finally, we confront appellant's constitutional challenge.

A. Setting the Stage.
A. Setting the Stage.

The career offender guideline provides that 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.

U.S.S.G. 4B1.1 (Nov. 1993). An associated guideline defines a

"controlled substance offense" for all pertinent purposes as "an

offense under a federal or state law prohibiting the manufacture,

import, export, distribution, or dispensing of a controlled

substance . . . with intent to manufacture, import, export,

distribute, or dispense." U.S.S.G. 4B1.2(2). To elucidate this

definition, the Sentencing Commission devised Application Note 1.

The note instructs readers that the term "controlled substance

offense" includes "the offenses of aiding and abetting,

conspiring, and attempting to commit such offenses." U.S.S.G.

4B1.2, comment. (n.1).

When appellant appeared for sentencing, the district

9

court, relying on United States v. Fiore, 983 F.2d 1 (1st Cir.

1992), cert. denied, 113 S. Ct. 1830 (1993), invoked Application

Note 1 and determined that the instant offense of conviction

conspiracy to possess with intent to distribute over 100

kilograms of marijuana constituted a controlled substance

offense for purposes of U.S.S.G. 4B1.1. The conviction

therefore triggered consideration of the career offender regime.

This step spelled trouble for appellant. The

presentence investigation report reflected that he previously had

racked up eleven adult criminal convictions. The judge counted

two of them a 1980 state court conviction for selling a

controlled substance (PCP), and a 1985 state court conviction for

possession of cocaine with intent to distribute as comprising

the predicate offenses needed to bring the career offender

guideline to bear. Hence, the court imposed a much stiffer

sentence 25 years than the offense of conviction, taken in a

vacuum, otherwise would have generated.

B. Conspiracies As Covered Offenses

Appellant challenges the district court's ruling that

his conspiracy conviction qualifies as a controlled substance

offense.3 Because this challenge hinges on the legal effect of

3In this case the lower court ruled that the conspiracy
conviction constituted a triggering offense. We note, however,
that the relevant definitions are substantially identical, and,
therefore, answering the question of whether a conspiracy charge
can constitute a triggering offense for purposes of the career
offender guideline necessarily answers the analogous question of
whether a conspiracy conviction can constitute a predicate

10

the conviction, our review is plenary. See Fiore, 983 F.2d at 2;

see also United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.

1992) (holding that a de novo standard of review governs

interpretive questions under the sentencing guidelines).

Appellant launches this offensive by remarking the

obvious: conspiracy convictions are not mentioned in the body of

either the relevant guidelines, U.S.S.G. 4B1.1-4B1.2, or the

enabling legislation, 28 U.S.C. 994(h).4 He acknowledges that

Application Note 1, quoted supra Part III(A), purports to include

certain conspiracies as triggering and/or predicate offenses, but

limns two reasons why sentencing courts must boycott this

conclusion. First, he asserts that the Sentencing Commission's

offense for such purposes. See, e.g., United States v. Bell, 966

F.2d 703, 705 (1st Cir. 1992) (explaining that it would be a
"bizarre . . . anomaly" if the same crime were determined to be a
triggering offense, but not a predicate offense, under the career
offender guideline, or vice-versa); see also United States v.

Price, 990 F.2d 1367, 1369 (D.C. Cir. 1993) (stating that, in

regard to classification, the statutory definition of what
constitutes a triggering offense and what constitutes a predicate
offense "poses the same problem").

4In the statute, Congress directed the Commission, inter

alia, to "assure that the guidelines specify a sentence to a term

of imprisonment at or near the maximum term authorized" for an
adult defendant convicted of a felony that is either "(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 section 1 of the Act of
September 15, 1980 (21 U.S.C. 955a)," so long as such defendant
"previously [has] been convicted of two or more felonies," each
of which is a crime of violence or controlled substance offense
(defined in the same way as triggering offenses are defined). 28
U.S.C. 944 (h). The Commission itself recognized the primacy
of the statute and wrote the career offender guideline in part to
reflect the statutory requirements. See U.S.S.G. 4B1.1,

comment. (backg'd.) (explaining that section 4B1.1 implements the
mandate of 28 U.S.C. 994(h)).

11

commentary is inconsistent with the guideline itself and should,

therefore, be disregarded. Second, he asserts that if, by reason

of the commentary or otherwise, the guideline is construed to

encompass conspiracies (particularly drug-trafficking

conspiracies), its promulgation exceeds the Sentencing

Commission's statutory authority. Neither assertion carries the

day.

1. Consistency with the Guideline. With respect to the

Sentencing Commission, the Court's instructions could scarcely be

more explicit:

Commentary which functions to interpret [a]
guideline or explain how it is to be applied,
controls, and if failure to follow, or a
misreading of, such commentary results in a
sentence select[ed] . . . from the wrong
guideline range, that sentence would
constitute an incorrect application of the
sentencing guidelines . . . .

Stinson v. United States, 113 S. Ct. 1913, 1917-18 (1993)

(citations and internal quotation marks omitted). To be sure,

commentary, though important, must not be confused with gospel.

Commentary is not binding in all instances. See Stinson, 113 S.

Ct. at 1918. In particular, commentary carries no weight when

the Commission's suggested interpretation of a guideline is

"arbitrary, unreasonable, inconsistent with the guideline's text,

or contrary to law." Fiore, 983 F.2d at 2.

An application note and a guideline are inconsistent

only when "following one will result in violating the dictates of

the other." Stinson, 113 S. Ct. at 1918. That is not the

situation here. Because the application note with which we are

12

concerned neither excludes any offenses expressly enumerated in

the guideline, nor calls for the inclusion of any offenses that

the guideline expressly excludes, there is no inconsistency.

By like token, the application note, when measured

against the text of the career offender guideline, does not

appear arbitrary or unreasonable. In real-world terms, drug-

trafficking conspiracies cannot easily be separated from the

mine-run of serious narcotics offenses and, therefore, the

Sentencing Commission's inclusion of conspiracy convictions is

most accurately viewed as interstitial. It is a logical step

both from a lay person's coign of vantage and from the standpoint

of the Commission's (and Congress's) oft-demonstrated

preoccupation with punishing drug traffickers sternly. It in no

way detracts from the dictates of the guideline itself. In

short, the application note comports sufficiently with the

letter, spirit, and aim of the guideline to bring it within the

broad sphere of the Sentencing Commission's interpretive

discretion. Cf., e.g., id. at 1919 (holding that an agency's

interpretation of its own regulations must be given controlling

weight if it does not violate the Constitution or a federal

statute); Robertson v. Methow Valley Citizens Council, 490 U.S.

332, 359 (1989) (similar).

2. Consistency with Section 994(h). As we observed at

the outset, the question of whether Application Note 1

contravenes 28 U.S.C. 994(h) has divided the courts of appeals.

Three circuits hold that Application Note 1 conflicts with the

13

statute. See United States v. Mendoza-Figueroa, F.3d ,

(8th Cir. 1994) [No. 93-2867 slip op. at ]; United States v.

Bellazerius, 24 F.3d 698, 702 (5th Cir. 1994); United States v.

Price, 990 F.2d 1367, 1369 (D.C. Cir. 1993). These courts

stress that a "conspiracy to commit a crime involves quite

different elements from whatever substantive crime the defendants

conspire to commit" and thus, cannot be said to be one of the

offenses "described in" the statutes that section 994(h)

enumerates. Price, 990 F.2d at 1369. Accordingly, these courts

hold that the Commission's attempt to introduce crimes not

expressly mentioned in section 994(h) into the career offender

calculus is contrary to law. See, e.g., id. In a related vein,

these courts also hold that since the Commission stated in a

"background" comment that it drafted U.S.S.G. 4B1.1 to implement

the "mandate" of section 994(h), and did not provide any other

legal authority in support of its enactment, the inclusion of

conspiracies in the career offender guideline cannot be regarded

as an exercise of the Commission's discretionary powers under 28

U.S.C. 994(a). See, e.g., Bellazerius, 24 F.3d at 702.

Several other circuits have adopted a diametrically

opposite view. These courts hold that "[s]ection 994(h) provides

the minimum obligation of the Commission and does not prohibit

the inclusion of additional offenses that qualify for such

treatment." United States v. Damerville, 27 F.3d 254, 257 (7th

Cir. 1994); accord United States v. Hightower, 25 F.3d 182, 187

(3d Cir. 1994); United States v. Allen, 24 F.3d 1180, 1187 (10th

14

Cir. 1994); United States v. Heim, 15 F.3d 830, 832 (9th Cir.

1994); cf. United States v. Beasley, 12 F.3d 280, 283 (1st Cir.

1993). Rather than viewing section 994(h) as a ceiling, limiting

the Sentencing Commission's power, these courts, constituting a

majority of the circuits that have spoken to the issue, see the

statute as a floor, describing the irreducible minimum that the

Commission must do by way of a career offender guideline, but

without in any way inhibiting the Commission, in the exercise of

its lawfully delegated powers, from including additional offenses

within the career offender rubric. See, e.g., Damerville, 27

F.3d at 257.

We find the majority view more persuasive. In this

regard, we think it is significant that this view is more

compatible with discernible congressional intent. The

legislative history makes plain that section 994(h) is "not

necessarily intended to be an exhaustive list of types of cases

in which the guidelines should specify a substantial term of

imprisonment, nor of types of cases in which terms at or close to

authorized maxima should be specified." S. Rep. No. 98-225, 98th

Cong., 1st Sess. 307 (1983), reprinted in 1984 U.S.C.C.A.N. 3182,

3359.5

5This legislative history also casts light on the
Commission's use of the term "mandate," referring to the
"mandate" of section 994(h), in the background commentary to the
career offender guideline. See U.S.S.G. 4B1.1, comment.

(backg'd.). We think it shows rather clearly that Congress
wanted to guide the Commission in a general direction, not merely
to instruct it to make a one-time mechanical adjustment. In our
opinion, the overall context suggests that Congress's "mandate"
directed the Commission to accord career offender treatment to

15

To cinch matters, we believe that Fiore a case in

which we held that a conviction for a conspiracy to commit a

crime of violence must be treated for career offender purposes

the same as a conviction for the crime of violence itself, 983

F.2d at 3 aligns us doctrinally with the majority view.

And because we continue to believe that Fiore was correctly

decided, we do not resist its pull.

3. Validity of the Definitions. Having concluded that

28 U.S.C. 994(h) neither comprises a ceiling nor an exclusive

compendium of the crimes that are eligible to serve as triggering

or predicate offenses, we must next determine whether the

Commission has lawful power to write the definition of "crime of

violence" and "controlled substance offense" to include certain

conspiracy convictions. We believe the Commission's definitions

are both valid and applicable to Piper's case.

On this issue, our work is largely behind us, for we

have addressed the question on a number of previous occasions.

In determining what crimes constitute covered offenses, we use

the formal categorical approach introduced by the Supreme Court

in Taylor v. United States, 495 U.S. 575 (1990). See Fiore, 983

F.2d at 3; accord United States v. Dyer, 9 F.3d 1, 2 (1st Cir.

1993) (per curiam). Under such an approach, we look to the

statutory definition of the offense in question, as opposed to

whatever drug-related crimes the Commission believed to be on a
par with the offenses enumerated in section 994(h). And we think
that the Commission used the word "mandate" to refer to this
broader policy.

16

the particular facts underlying the conviction. See Fiore, 983

F.2d at 3; see also United States v. Winter, 22 F.3d 15, 18 (1st

Cir. 1994).

To determine the status of a conspiracy conviction vis-

a-vis the career offender rubric, the key question is "conspiracy

to do what?" Fiore, 983 F.2d at 3. If the object of the

conspiracy is to commit a crime of violence or a controlled

substance offense, as those terms are defined for purposes of

U.S.S.G. 4B1.1, then the career offender provision is

applicable. Here, answering the question brings the offense of

conviction within the ambit of the career offender guideline, as

appellant acknowledges that he pleaded guilty to a charge that he

participated in a drug-trafficking conspiracy.

Appellant tries mightily to avoid this conclusion. He

claims that Fiore should not be given suzerainty here. In this

connection, appellant makes two points: (1) Fiore involved a

conspiracy to commit a crime of violence, rather than a

conspiracy to commit a controlled substance offense; and (2)

Fiore involved a predicate offense rather than a triggering

offense. To be sure, these distinctions exist - but they are

distinctions that make no legally relevant difference.

Appellant's first point simply will not wash. The

rationale on which the Taylor Court relied in choosing a formal

categorical approach is equally applicable to controlled

substance offenses. For one thing, the approach mirrors

Congress's approach. See Taylor, 495 U.S. at 575. For another

17

thing, the same practical difficulties that militate against the

use of a fact-specific analytic method are present in both

situations. Cf. Beasley, 12 F.3d at 284 (explaining that to

distinguish controlled substance predicate offenses based on the

jurisdiction of conviction would "produce a crazy quilt of

punishment results").

We need not dwell on appellant's second point. As we

already have noted, see supra note 3, an identical analysis

applies whether the offense in question is a triggering or

predicate offense. Consequently, the same result must obtain.

Fiore controls.

4. Rulemaking. Appellant mounts one last challenge to

the inclusion of conspiracy convictions in the career offender

calculus. This challenge derives from the notion that the

promulgation of Application Note 1 constituted improper

rulemaking in violation of 28 U.S.C. 994(x). We reject this

initiative. A fair reading of the statute indicates that it

requires no more than that the promulgation of the guidelines

themselves shall be subject to the rulemaking procedures detailed

in the Administrative Procedure Act (APA). See 28 U.S.C.

994(x) (stating that the relevant APA provisions, such as 5

U.S.C. 553, "relating to the publication in the Federal

Register and public hearing procedure, shall apply to the

promulgation of Guidelines pursuant to this section") (emphasis

supplied).

In any event, Application Note 1 is nothing more than

18

an interpretive aid. As such, it is "akin to an agency's

interpretation of its own legislative rules." Stinson, 113 S.

Ct. at 1919. It is not necessary that such interpretations be

promulgated in accordance with the formal requirements of the

APA. See 5 U.S.C. 553 (excluding from rulemaking procedures

"interpretative rules, general statements of policy, or rules of

agency organization, procedure, or practice").

C. Prior State Convictions as Predicate Offenses.

Taking a slightly different tack, appellant asseverates

that the enumeration of specific statutes within section 994(h)

precludes incorporation of state court convictions as predicate

offenses under the career offender provision; and that,

therefore, the court below committed reversible error in counting

his convictions for state drug-trafficking crimes. We do not

agree.

The short of it is that this asseveration has been

advanced and rebuffed in many other cases. See, e.g.,

Beasley, 12 F.3d at 284 (holding that to exclude state drug-

trafficking convictions would thwart Congress's intent, do

violence to the language of section 994(h), and create an

unjustified anomaly); United States v. Rivera, 996 F.2d 993, 996

(9th Cir. 1993) (holding the Sentencing Commission's inclusion of

state convictions as predicate offenses to be both permissible

and reasonable); United States v. Whyte, 892 F.2d 1170, 1174 (3d

Cir. 1989) (stating that, under section 994(h), predicate drug

offenses need only involve "conduct that could have been charged

19

federally"), cert. denied, 494 U.S. 1070 (1990); see also Dyer, 9

F.3d at 1 (explicitly endorsing Whyte rationale).

Displayed against the monochromatic backdrop of this

massed authority, appellant's challenge fades.6

D. Constitutionality of the Sentence.

Appellant's last-ditch argument is that the mere

application of the career offender guideline in this case

infracts his constitutional rights. Specifically, he contends

that the Sentencing Commission, in promulgating the guideline,

violated both the Due Process Clause (by treating all career

offenders alike, without regard to their individual

circumstances) and the Cruel and Unusual Punishment Clause (by

prescribing a sentence which does not depend on the gravity of

the conduct underlying the offense of conviction).7

This rumination deserves short shrift. Appellant's

constitutional challenge leans almost exclusively on United

States v. Spencer, 817 F. Supp. 176 (D.D.C. 1993). However,

6On appeal, Piper contends for the first time that his
antecedent state convictions are "not fairly or rationally linked
to the [enumerated] federal crimes." We eschew consideration of
this late-blooming argument. It is settled that, in respect to
criminal sentencing, as in other contexts, arguments not squarely
presented to the sentencing court cannot debut as of right in an
appellate venue. See United States v. Sepulveda, 15 F.3d 1161,

1202 (1st Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994);

United States v. Ocasio-Rivera, 991 F.2d 1, 3 (1st Cir. 1993);

United States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1993).

7We note that appellant also alludes in passing to the
possibility that the career offender guideline abridges the Equal
Protection Clause. Because this allusion is not accompanied by
any developed argumentation, we deem it waived. See United

States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494

U.S. 1082 (1990).

20

Spencer has since been reversed, see United States v. Spencer, 25

F.3d 1105 (D.C. Cir. 1994), and is, therefore, a cardboard

crutch. Moreover, the reversal seems richly deserved. After

all, the prevailing view is that the career offender guideline

does not violate the Due Process Clause. See, e.g., United

States v. Davis, 15 F.3d 526, 533 n.5 (6th Cir. 1994); United

States v. John, 936 F.2d 764, 766 n.2 (3d Cir. 1991); United

States v. Jones, 907 F.2d 929, 930 (9th Cir. 1990); United States

v. Green, 902 F.2d 1311, 1313 (8th Cir.), cert. denied, 498 U.S.

943 (1990). We share this view.

To the extent that appellant's claim of cruel and

unusual punishment rests on the district court's reasoning in

Spencer, it is similarly undone. Perhaps more importantly,

appellant fails to indicate any factor that meaningfully

distinguishes his sentence as a career offender from other

sentences found by other courts to be in complete conformity with

the strictures of the Eighth Amendment. See, e.g., Rummel v.

Estelle, 445 U.S. 263 (1980); Davis, 15 F.3d at 533 n.5; John,

936 F.2d at 766 n.2. Thus, appellant's constitutional attack

misses the mark.

IV. CONCLUSION

We need go no further. Having examined the record and

the applicable law with care, we find appellant's guilty plea to

have been properly received and his sentence to have been imposed

in accordance with law. The career offender regime, as crafted

by Congress and the Sentencing Commission, is harsh, but the

21

courts are obliged to enforce it according to its tenor. The

district court did so here.

Affirmed.

22