United States Court of Appeals
For the First Circuit
No. 18-1629
UNITED STATES OF AMERICA,
Appellee,
v.
HÉCTOR GARCÍA-CARTAGENA, a/k/a/ Arana,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Franco L. Pérez-Redondo, Research & Writing Specialist, with
whom Eric A. Vos, Federal Public Defender, and Vivianne M. Marrero-
Torres, Assistant Federal Public Defender, Supervisor, Appeals
Section, were on brief, for appellant.
Thomas F. Klumper, Assistant United States Attorney, Senior
Appellate Counsel, with whom Rosa Emilia Rodríguez-Vélez, United
States Attorney, and Mariana E. Bauzá-Almonte, Assistant United
States Attorney, Chief, Appellate Division, were on brief, for
appellee.
March 6, 2020
THOMPSON, Circuit Judge. When most federal prisoners
get out of prison, their first few years of freedom are supervised
(by the United States Probation Department) and conditional: among
other things, they may not commit another "Federal, State, or local
crime." 18 U.S.C. § 3583(d). If they do commit a new crime, even
if they're not convicted (i.e., found guilty beyond a reasonable
doubt after a full-dress trial or plea), a federal district court
may find they more-likely-than-not committed it, revoke their
supervised release, and send them back to prison. So it was for
Hector García-Cartagena — who in November 2016, after a seven-year
stint in federal prison, began his eight-year term of supervised
release. Within a few months, he was arrested twice: first for
possessing drugs with intent to distribute, then for domestic abuse
under Puerto Rico law. Commonwealth prosecutors dropped the most
serious charges in Puerto Rico court (where he pled guilty to
lesser offenses). Nonetheless, the federal district judge found
he committed a "crime of violence" and a "controlled substance
offense" (as defined in the federal sentencing guidelines) — "Grade
A" violations of supervised release carrying the stiffest
guideline penalties, see U.S.S.G. § 7B1.1(a)(1) — and sentenced
García to three more years in prison.
On appeal, García challenges the "Grade A" label. The
government defends it. To resolve their dispute (since our on-
point case law is murky, and other circuits have split on the
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issue), we clarify the approach courts should use to determine if
a crime is a "controlled substance offense" or a "crime of
violence" under § 7B1.1(a) — the same "categorical approach" we've
used to identify whether state or federal law crimes fit the bill
in other contexts, with one caveat: once the court identifies a
"crime of violence" or "controlled substance offense," it may
consider any reliable evidence (subject to the flexible
constraints applicable in revocation hearings) to decide if the
defendant committed that crime. With that framework in hand, we
affirm García's sentence.
LEGAL LANDSCAPE
Let's start with the basics. To recommend sentences for
supervised release violators, the United States Sentencing
Guidelines rank new crimes with letter grades (A, B, and C). The
highest grade (A), with the highest (recommended) range of
sentences, is reserved for new criminal "conduct constituting [ ]
a federal, state, or local offense punishable by a term of
imprisonment exceeding one year that (i) is a crime of violence,
(ii) is a controlled substance offense," or falls within two other
classes of serious crimes not relevant here. U.S.S.G.
§ 7B1.1(a)(1). Under § 4B1.2:
(a) The term "crime of violence" means any offense
under federal or state law, punishable by
imprisonment for a term exceeding one year, that —
(1) has as an element the use, attempted use, or
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threatened use of physical force1 against the person
of another [the "force clause"], or (2) is murder,
voluntary manslaughter, kidnapping, aggravated
assault, a forcible sex offense, robbery, arson,
extortion, or the use or unlawful possession of a
firearm described in 26 U.S.C. § 5845(a) or
explosive material as defined in 18 U.S.C. § 841(c)
[the "enumerated offense" clause].
(b) The term "controlled substance offense" means an
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.
U.S.S.G. § 4B1.2; see § 7B1.1, cmt. nn. 2, 3 (stating that "crime
of violence" and "controlled substance offense" are "defined in
§ 4B1.2 (Definitions of Terms Used in Section 4B1.1)").
Those terms appear throughout the guidelines — not only
in § 7B1.1(a)(1), but also in various other provisions that
increase a defendant's recommended sentence based on "crime[s] of
violence" and "controlled substance offense[s]" and also
incorporate the definitions in § 4B1.2. To apply those other
provisions, we use the "categorical approach" minted in Taylor v.
United States, 495 U.S. 575, 588 (1990) (holding that a similar
definition of "violent felony" in the Armed Career Criminal Act,
or ACCA, "requires the trial court to look only to the fact of
1"Physical force" means "violent force": "force capable of
causing physical pain or injury to another person." United States
v. Martinez, 762 F.3d 127, 137 (1st Cir. 2014) (quoting Johnson v.
United States, 559 U.S. 133, 140 (2010)).
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conviction and the statutory definition of the prior offense").
See, e.g., United States v. Ramos-González, 775 F.3d 483, 504 (1st
Cir. 2015); United States v. Dávila-Félix, 667 F.3d 47, 56 (1st
Cir. 2011); United States v. Bryant, 571 F.3d 147, 157 (1st Cir.
2009) (all applying § 4B1.1's "Career Offender" enhancement for
defendants convicted of a "crime of violence" or "controlled
substance offense" for the third time); see also United States v.
Martínez-Benítez, 914 F.3d 1, 2 (1st Cir. 2019) (ditto for
§ 2K2.1(a)(4), increasing the guideline sentence for defendants
who commit firearms offenses with a prior conviction for a
"controlled substance offense" or "crime of violence"). We've
used the approach to characterize both past convictions and crimes
"freshly committed," United States v. Bell, 966 F.2d 703, 704–06
(1st Cir. 1992), even when the defendant wasn't convicted of the
covered offense, see United States v. Gary, 74 F.3d 304, 316–17
(1st Cir. 1996) (using the categorical approach to decide that an
offense was a "crime of violence" under § 4B1.4(b)(3)(A), which
increases a defendant's guideline sentence if he possessed a
firearm "in connection with . . . a crime of violence" or
"controlled substance offense").
Although Taylor interpreted the definition of "violent
felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§ 924(e), we adopted its approach early on to classify "crime[s]
of violence" under the Career Offender guideline (§ 4B1.1),
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because, we explained, "[t]he definition of a 'violent felony' for
purposes of the [ACCA] [was] the same in all material respects as
the definition of a 'crime of violence'" in § 4B1.2(a) (which
§ 4B1.1 incorporates). Bell, 966 F.2d at 704. After all, the
force clause of "section 4B1.2 employ[s] exactly the same language
that Taylor relied on to justify an inference that a categorical
approach was intended": the phrase defining a crime of violence
as an offense that "has as an element the use, attempted use, or
threatened use of physical force against the person of another."
Id. at 704–05 & n.3 (emphasis added). That phrase — "has as an
element" — was crucial in Taylor; since the ACCA (in its force
clause) defines "violent felony" as a felony that "'has as an
element' — not any crime that, in a particular case, involves —
the use or threat of force," the Court held that the whole
definition (including the "the phrase 'is burglary'" in the
"enumerated offense" clause) must "refer[ ] to the elements of the
statute of conviction, not to the facts of each defendant's
conduct." Taylor, 495 U.S. at 600–01. We held that the same
"elements"-focused language in § 4B1.2(a), coupled with the
commentary, demanded the same elements-based (or "categorical")
approach to classifying offenses as "crime[s] of violence" for
purposes of the "Career Offender" enhancement (§ 4B1.1). See Bell,
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966 F.2d 703.2 Although § 4B1.2(b) used different language, we
soon adopted the same method to classify crimes as "controlled
substance offense[s]" under § 4B1.1. See United States v. Piper,
35 F.3d 611, 619 (1st Cir. 1994) (reasoning that the approach
"mirror[ed] Congress's approach" to serious drug offenses under
the ACCA and avoided the "practical difficulties" involved in
excavating the facts underlying past convictions).
Under the categorical approach, we look only to the
"elements" of the crime — i.e., "the constituent parts of [the]
crime's legal definition" ("the things the prosecution must prove
beyond a reasonable doubt to sustain a conviction") — and not "how
a given defendant actually perpetrated the crime," to decide if
the offense, as defined in the statute, matches § 4B1.2's criteria
2 In Bell, and later in Gary, we went on to apply the "residual
clause" of § 4B1.2(a)(Nov. 1990), which called an offense a "crime
of violence" if it "present[ed] a serious potential risk of
physical injury to another." Bell, 966 F.2d at 706–07; Gary, 74
F.3d at 316. The Sentencing Commission later deleted that clause.
See Amendment 798 (Aug. 1, 2016). But § 4B1.2(a) retains the "as
an element" language that, in our view, called for the categorical
approach to classifying "crime[s] of violence." By the way, that's
the same language the Supreme Court has since found most
significant in interpreting the definition of "violent felony" in
the ACCA, and similar definitions elsewhere in the U.S. Code, to
mandate a categorical approach. See, e.g., United States v. Davis,
139 S. Ct. 2319, 2328 (2019) (citing Leocal v. Ashcroft, 543 U.S.
1, 7 (2004)); see also United States v. Frates, 896 F.3d 93, 96–
97 (1st Cir. 2018) (noting that the ACCA's force and enumerated
clauses, see 18 U.S.C. § 924(e)(2)(B), are "materially identical
to the Guidelines' crime of violence definition," though Amendment
798 added a few enumerated offenses to § 4B1.2(a)'s text). More
on that later.
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for a "crime of violence" or "controlled substance offense."
Mathis v. United States, 136 S. Ct. 2243, 2248, 2251–52 (2016)
(internal citations omitted); accord United States v. Martinez,
762 F.3d 127, 133 (1st Cir. 2014) ("A state offense qualifies as
a crime of violence only if its elements are such that . . . a
person convicted of the offense has 'necessarily' been found guilty
of conduct that meets [§ 4B1.2's] definition."). We call the test
"categorical" because it "function[s] as an on-off switch" so a
"crime [will] qualify as a predicate in all cases or in none."
Descamps v. United States, 570 U.S. 254, 268 (2013).
To decide if a conviction is for a covered offense, we
take three steps. First, we ask if a conviction under the statute
requires (as pertinent here) either the violent use of force
against someone or possession of a controlled substance with intent
to distribute; if yes, the offense counts. See United States v.
Mohamed, 920 F.3d 94, 101 (1st Cir. 2019) (asking if the state
statute "require[d] an intent to distribute [a controlled
substance] as an element of the crime"); United States v. Williams,
529 F.3d 1, 4 (1st Cir. 2008) ("If the court determines that a
violation of the statute in question necessarily involves each and
every element of a violent crime, then the offense is deemed a
crime of violence[.]"). If the statute is overbroad (if it
criminalizes both covered and non-covered conduct) then the court
must see if it's "divisible": i.e., whether it sets out "discrete
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offenses that can be separated from each other." United States v.
Faust, 853 F.3d 39, 51 (1st Cir. 2017).3 If the statute is
divisible into several distinct crimes, one of which is a "crime
of violence" or "controlled substance offense," the court "looks
to a limited class of documents (for example, the indictment, jury
instructions, or plea agreement and colloquy) to determine what
crime, with what elements, a defendant was convicted of." Mathis,
136 S. Ct. at 2249 (citing Shepard v. United States, 544 U.S. 13,
26 (2005)). This last step, when a court peeks beyond the statute
defining the crime to the record of conviction, is called the
"modified categorical approach." Id.
At the heart of this appeal is whether a court must use
a similar framework in the revocation context to decide whether
the defendant committed a "crime of violence" or "controlled
substance offense" under § 7B1.1(a)(1). García says yes; the
government says no. Here's how we got there.
3 To be divisible, a statute must list "elements in the
alternative . . . thereby defin[ing] multiple crimes." Mathis,
136 S. Ct. at 2249. Here, the word "element" is important: again,
it's a "constituent part[ ] of a crime's legal definition" —
something that "the prosecution must prove to sustain a
conviction." Id. at 2248–50. Thus, not every statute that lists
things in the disjunctive (using either/or) is divisible. If the
statute "merely specifies diverse means of satisfying a single
element of a single crime — or otherwise said, spells out various
factual ways of committing some component of the offense — a jury
need not find (or a defendant admit) any particular item." Id.
So such a statute wouldn't be divisible into two separate offenses.
Id.
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THE FACTS
In 2008, the United States District Court for the
District of Puerto Rico sentenced García to eighty-seven months in
prison and eight years of supervised release for his part in a
drug conspiracy. He was released in November 2016 and began his
supervised release term.
He wasn't out long. About seven months later, Puerto
Rican police caught García with a smorgasbord of drugs outside a
Guayama housing project. Catching wind, García's probation
officer filed a motion to revoke his supervised release. The
officer wrote in his "Motion to Show Cause" that García "was
arrested, in a drug point at Luis Pales Matos Public Housing
Project in Guayama . . . in possession of marijuana, cocaine[,]
and unprescribed pills." The Puerto Rico Commonwealth court
released him on bond a month later.
But within the next month, García was arrested again.
This time (according to the probation officer's second sworn
motion, and his girlfriend's sworn statement), he got into the
back of his girlfriend's car, climbed into the front, and sat on
top of her while "struggling . . . to gain control of the vehicle."
Meanwhile, he was "hitting her with an open hand," bruising her
face and splitting her upper lip. Once he got control of the car,
he drove the woman from the housing project to a store, where she
managed to escape. The probation officer's motions alleged a
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violation of the no-new-crimes condition and a few less serious
drug-related violations.
As the motions noted, García was charged in the
Commonwealth court with violating Article 401 of the Puerto Rico
Controlled Substances Act ("CSA"), P.R. Laws Ann. tit. 24, § 2401
(prohibiting the possession of a controlled substance with intent
to "manufacture, distribute, dispense, transport or conceal" it),
and Articles 3.1 ("Abuse") and 3.4 ("Abuse by Restriction of
Liberty") of Puerto Rico Domestic Violence Law 54.4 After a plea
bargain, however, the Commonwealth "reclassified" most of those
charges. They downgraded the drug charges from Article 401 to
Article 406, which punishes conspiracy or attempt to commit "any
4 Any person who employs physical force or psychological
abuse, intimidation, or persecution against his/her
[spouse or other listed domestic relation] in order to
cause physical harm to the person, the property held in
esteem by him/her, except that which is privately owned
by the offender, or to another person, or to cause
serious emotional harm, shall be guilty of a fourth-
degree felony in the upper end of the range.
P.R. Laws Ann. tit. 8, § 631 (Article 3.1).
Any person who uses violence or intimidation against
his/her [spouse or other listed domestic relation] or
who uses the pretext of suffering from, or that one of
the aforementioned persons suffers from a mental disease
or defect to restrict the victim of liberty with his/her
knowledge, shall be guilty of a third-degree felony in
the lower end of the range.
P.R. Laws Ann. tit. 8, § 634 (Article 3.4).
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offense" under the CSA and permits a lower penalty. P.R. Laws
Ann. tit. 24, § 2406. And they watered down the Article 3.4
"restriction of liberty" charge to simple abuse under Article 3.1.
García pled guilty to these lesser offenses and was sentenced to
three years, six months, and one day in prison.
In a motion to schedule a revocation hearing, García
wrote that he would "not contest the allegations contained in the
Motions Notifying Violations of the Supervised Release Conditions"
— the full title of the probation officer's two motions described
above — but would instead make "arguments in mitigation of
punishment." At the hearing, his counsel reiterated that he was
"not challenging the allegation alleged in the motion." Instead,
García urged that, using the categorical approach, the government
could not show he committed a "crime of violence" or "controlled
substance offense." To his mind, only two of the crimes charged
— possession of a controlled substance with intent to distribute
under Article 401, and conspiring/attempting to do so under Article
406 — were covered offenses (specifically, "controlled substance
offenses") under § 7B1.1(a). But the available Shepard documents
(the minutes of the plea hearing, the plea agreement, or the
judgment from the Commonwealth court) showed that García only pled
guilty to an Article 406 conspiracy/attempt to commit some offense
under the Puerto Rico CSA. So in García's view, the court had to
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classify his violation as Grade B, yielding a guideline range of
18–24 months.
The district judge disagreed. First, she said, even if
the modified categorical approach applied, the sworn Puerto Rico
complaints charged García with possessing marijuana and cocaine
with intent to distribute them under Article 401, which meant that
he must have pled guilty to conspiring or attempting to commit
that offense. Anyway, she reasoned, the revoking court could look
past García's conviction to his "underlying conduct." So she
considered evidence beyond the Commonwealth court records of
conviction — including the information in the probation officer's
motion, the sworn complaints, and García's girlfriend's witness
statement — to conclude that García possessed marijuana and cocaine
with intent to distribute, violating Article 401, and committed
"violent crimes under [Domestic Violence] Law 54." These crimes,
the judge found, were Grade A violations of García's supervised
release because they were (respectively) a "controlled substance
offense" and a "crime of violence" under U.S.S.G. § 7B1.1(a)(1).
Based on those findings, she calculated the guideline range as 30–
37 months and sentenced García to thirty-six months in prison, to
run consecutively with the Puerto Rico sentences.
OUR TAKE
On appeal, García challenges the "Grade A" tag. And he
advances a similar argument to the one he made below. To apply
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§ 7B1.1(a)(1) the right way, he tells us, the court must first
decide if the state or federal law the defendant violated describes
a "crime of violence" or a "controlled substance offense" as
defined in the Guidelines. Next, if the law is overbroad and
divisible (for example, if it defines two separate offenses, only
one of which counts, see Mathis, 136 S. Ct. at 2249), the
government must identify "which of the multiple offenses in the
statute the defendant's conduct constituted." United States v.
Willis, 795 F.3d 986, 992–94 (9th Cir. 2015). To do so, he says,
it may "present[ ] witnesses at the final revocation hearing or
introduce[ ] documents pertaining to the underlying state case to
show the crime [the defendant] committed."5
5García rightly points out that we've already applied the
categorical approach to classify an offense as a "crime of
violence" in the revocation context. In United States v. Eirby,
we relied on the elements of the Maine statute (criminalizing
sexual abuse of a minor) under which the defendant was convicted
in state court to conclude that he committed a Grade A violation
under § 7B1.1(a)(1)(A). 515 F.3d 31, 37–39 (1st Cir. 2008)
(concluding that the "conduct criminalized by [the Maine statute]
categorically pose[d] a serious risk of physical injury" and,
therefore, was a "crime of violence" under § 4B1.2(a)'s since-
deleted residual clause). The government parries that Eirby didn't
tether us to the categorical approach because there, we just
"assumed that [we] must examine the offense without regard to
actual conduct," as neither party argued for a different approach.
Gov.'s Br. at 35. Since we conclude that the text of
§§ 7B1.1(a)(1) and 4B1.2 compels the use of the categorical
approach here, we need not decide whether Eirby foreordained that
result.
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García urges that since the government "opted for the
latter course" in this case — meaning it "asked the district court
to glean from the state court records the specific offense Mr.
García violated" — the court could only rely on Shepard-approved
documents to show the offense he committed was possession of
controlled substances with intent to distribute (or
attempt/conspiracy to do so). In other words, the court could not
use the original Article 401 charge, since García pled guilty to
a lesser offense. See United States v. Rivera, No. 14-2039, slip
op. at 1 (1st Cir. Aug. 17, 2015) (judgment) (holding that when
determining whether a past conviction was for a "crime of violence"
under the Guidelines, "a district court may not rely on a charging
document without first establishing that the crime charged was the
same crime for which the defendant was convicted") (quoting United
States v. Bernal-Aveja, 414 F.3d 625, 627–28 (6th Cir. 2005)).
The government begs to differ. In its view, the
categorical approach does not apply (at all) in revocations. After
all, the Guidelines' commentary makes "the grade of [a supervised
release] violation" depend on "the defendant's actual conduct,"
and not "the conduct that is the subject of criminal charges or of
which the defendant is convicted in a criminal proceeding."
U.S.S.G. § 7B1.1 cmt. n.1. So, says the government, once the court
finds the defendant committed a new crime, it can ignore whatever
law (with whatever elements) the defendant broke and just ask
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whether his "actual conduct presented the use . . . of physical
force against the person of another" or the "possession of a
controlled substance with the intent to distribute."
Reading the Guidelines with fresh eyes ("de novo"),
United States v. Rivera-Berríos, 902 F.3d 20, 24 (1st Cir. 2018),
we think their text mandates a middle ground. Under
§ 7B1.1(a)(1)(A)(i) and (ii), as set out above, the government
must take two steps to show a Grade A violation. First, it needs
to point to some "federal, state, or local offense" punishable by
more than a year in prison that is (i) "a crime of violence" or
(ii) "a controlled substance offense." To answer this question,
we hold, § 4B1.2 requires the categorical approach. Once the
government identifies a qualifying offense, however, it need not
show the supervisee was convicted of that offense; it need only
show that the supervisee actually committed (that his "conduct
constituted") the crime's elements as defined in the statute (or
state common law). § 7B1.1(a) & cmt. n.1. To answer that question,
the revoking court may look beyond the Shepard documents (which
are only needed "to determine what crime . . . a defendant was
convicted of," Mathis, 136 S. Ct. at 2249 (emphasis added)), and
consider any other evidence admissible in revocation hearings.
See Gary, 74 F.3d at 316 (prescribing a similar two-step inquiry
to determine if a defendant possessed a firearm "in connection
with" a "crime of violence" or "controlled substance offense" under
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§ 4B1.4(b)(3)(A)). In so holding, we join the Third and Ninth
Circuits, who have adopted this same hybrid approach to
§ 7B1.1(a)(1)(A). See Willis, 795 F.3d at 992–94; United States
v. Carter, 730 F.3d 187, 192–93 (3d Cir. 2013).6
To unspool our reasoning, we take these two steps in
turn.
Step One: Categorical Approach
As we noted earlier, we've interpreted § 4B1.2's
definitions of "crime of violence" and "controlled substance
offense" — no matter where they're used in the guidelines, and no
matter what they're describing (be it a prior conviction or a crime
freshly committed and found by the sentencing court) — to call for
a categorical approach to deciding which crimes they cover. See
6
The government claims that the Third Circuit took its side
in Carter when it wrote that "[i]n the revocation context . . .
the categorical approach does not apply, and district courts may
consider a defendant's actual conduct in determining whether they
have broken the law and thus the terms of their supervised
release." 730 F.3d at 192. Later in the opinion, however, the
court clarified that "in determining whether [the] offense is a
'crime of violence,' § 4B1.2 requires that it contain an element
of force"; "[i]t is therefore not enough to say that a defendant's
actions were simply violent or forcible without pointing to a crime
containing those same elements." Id. at 193. The court went on
to find the district court gaffed because it failed to identify a
"federal or state offense" that the defendant violated, so the
court of appeals could not analyze the "elements" to see if they
matched § 4B1.2(a)'s definition. See id. Best read, then, Carter
held (as we do today) that a court applying § 7B1.1(a)(1)(A)(i)
must identify a statutory crime that requires violent force as an
element (read: apply the categorical approach), but may look beyond
convictions and Shepard documents to see if the defendant committed
that crime.
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supra at 4–5. That's because, under § 4B1.2, it's the "offense
under federal or state law," and not the defendant's "conduct,"
that must "ha[ve] as an element" the violent use of force, U.S.S.G.
§ 4B1.2(a)(1), be "robbery, arson, extortion," etc., id.
§ 4B1.2(a)(2), or "prohibit" drug possession with distributive
intent, id. § 4B1.2(b). True, "in ordinary speech[,] words such
as 'crime, 'felony,' 'offense,' and the like sometimes refer to a
generic crime," like "the crime of fraud or theft in general" and
sometimes mean the "specific acts in which an offender engaged on
a specific occasion," like the heist (s)he pulled off last month.
Nijhawan v. Holder, 557 U.S. 29, 33–34 (2009). But when Congress
uses the first, generic meaning, we must "look to the statute
defining the offense" (that is, use the categorical approach) to
see if it counts. Id. And in § 4B1.2, the word "offense" requires
just that.
First, "the text of [§ 4B1.2(a)]" directs us to
"the elements of the offense, rather than the conduct that this
particular defendant engaged in committing [it]." United States
v. Ellison, 866 F.3d 32, 35 (1st Cir. 2017). For that reason, the
Supreme Court has long held that the near-identical language in
the ACCA (which "defines the 'violent felonies' it covers to
include 'burglary, arson, or extortion' and 'crime[s]' that have
'as an element' the use or threatened use of force") "refers
directly to generic crimes" and demands a categorical approach.
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Nijhawan, 557 U.S. at 34. "Elements," recall, are "the
'constituent parts' of [the] crime's legal definition." Mathis,
136 S. Ct. at 2248 (emphasis added). So to figure out what an
offense "has as an element," we "must look to the statute defining
the offense." Nijhawan, 557 U.S. at 34; see also Leocal v.
Ashcroft, 543 U.S. 1, 6–7 (2004) (stressing the same "as an
element" language in holding that a nearly identical definition of
"crime of violence" in 18 U.S.C. § 16 — a definition used
throughout the U.S. Code to cover not only convictions, but also
threatened, alleged, and freshly committed crimes — "requires us
to look to the elements" of the offense and not "to the particular
facts relating to the petitioner's crime"); Taylor, 495 U.S. at
600–01.7
The same goes for § 4B1.2(b), which (covering "an
offense under federal or state law . . . that prohibits" drug
trafficking) also refers to a "generic" crime as defined in the
law, and not the defendants' conduct that happens to violate it.
7 The Sentencing Commission's notes on the 2016 Amendments to
§ 4B1.2 reinforce that the categorical approach applies to defining
"crimes of violence" and "controlled substance offenses" no matter
what guideline incorporates § 4B1.2. Acknowledging that "[t]he
'crime of violence' definition at § 4B1.2 is used to trigger
increased sentences under several provisions in the Guidelines
Manual," including "7B1.1," the Commission wrote that to apply the
"enumerated offense" clause in subsection (a)(2), "courts compare
the elements of the predicate offense of conviction with the
elements of the enumerated offense in its 'generic, contemporary
definition.'" Id.
- 19 -
After all, criminal laws — not criminal defendants — are what
"prohibit" drug dealing (unless we were to say that legislators
commit "controlled substance offenses" by enacting them). Thus,
we've held that this "definition of 'controlled substance
offense'" in § 4B1.2(b) is what "requires that the statute under
which the defendant was charged involves an intent to distribute
or other indicia of trafficking." Bryant, 571 F.3d at 157
(emphasis added); see also United States v. Martínez-Hernandez,
422 F.3d 1084, 1087 (10th Cir. 2005) (using the categorical
approach to determine whether a crime is "[a]n offense under
federal, state, or local law that prohibits the possession of
[certain] firearm[s]," U.S.S.G. § 2L1.2(b)(1), figuring that just
as the phrase "'[t]hat has as an element' asks us to look at the
elements of the statute of conviction; 'that prohibits' asks us to
look at what the statute prohibits").
On the other hand, if the Sentencing Commission wanted
to trigger a Grade A violation whenever the defendant "used
physical force against the person of another" or "possessed a
controlled substance with the intent to distribute," it could have
said just that.8 See Sessions v. Dimaya, 138 S. Ct. 1204, 1218
8Just flip open the Guidelines Manual; chances are you'll
see an example. See, e.g., U.S.S.G. § 2D1.1(b) ("(1) If a
dangerous weapon (including a firearm) was possessed, increase by
two levels. (2) If the defendant used violence, made a credible
threat to use violence, or directed the use of violence, increase
by 2 levels."); id. § 2H1.1(a)(3) (setting a base offense level of
- 20 -
(2018) ("If Congress had wanted judges to look into a felon's
actual conduct, 'it presumably would have said so; other statutes,
in other contexts, speak in just that way'" (quoting Descamps, 570
U.S. at 267–68)) (interpreting 18 U.S.C. § 16). Instead, the
Commission incorporated § 4B1.2, its focus on "elements" and
"prohibit[ions]," and all the baggage those words carry. See
U.S.S.G. § 7B1.1 cmt. nn. 2, 3. And there's no reason to think
(as the government must) that § 7B1.1(a)(1) borrows some parts of
§ 4B1.2 (the language the government quotes), but not others (the
references to "elements" and "prohibitions"). See Cyan, Inc. v.
Beaver Cty. Emps. Ret. Fund, 138 S. Ct. 1061, 1078 (2018) (refusing
to read a cross-reference to a whole subsection to refer only to
cherry-picked phrases within it; reasoning that if Congress meant
to be more specific, it would have been).
Section 4B1.2's plain language therefore kiboshes the
government's quest to turn "crime of violence" and "controlled
substance offense" and their respective definitions into
chameleons that vary their colors (to mean "specific acts" in
"10, if the offense involved (A) the use or threat of force against
a person; or (B) property damage or the threat of property
damage."); see also id. § 2G1.1 (Nov. 1, 2004) ("If the offense
involved (A) a commercial sex act; and (B) the use of physical
force, fraud, or coercion, increase by 4 levels."); id.
§ 4B1.4(b)(3)(A) (setting a base offense level of "34, if the
defendant used or possessed the firearm or ammunition in connection
with either a crime of violence . . . or a controlled substance
offense") (all emphases added).
- 21 -
§ 7B1.1(a) but a "generic" crime in other contexts) depending on
what guideline puts them to work. That would have taken some high-
level hocus-pocus to begin with, anyway, since "[i]n all but the
most unusual situations, a single use of a statutory phrase" (like
"offense," "element," and "prohibits" in § 4B1.2) "must have a
fixed meaning," United States v. Davis, 139 S. Ct. 2319, 2328
(2019), and since the "[Supreme] Court has held (it could hardly
have done otherwise) that 'we must interpret'" § 16's materially
identical "crime of violence" definition "consistently," no matter
what provision in the U.S. Code (be it a civil or criminal one)
incorporates it, Dimaya, 138 S. Ct. at 1217 (quoting Leocal, 543
U.S. at 12, n.8).
In concluding that the categorical approach applies
here, we part ways with three other circuits. See United States v.
Golden, 843 F.3d 1162, 1166–67 (7th Cir. 2016) (citing United
States v. Trotter, 270 F.3d 1150, 1155 (7th Cir. 2001)); United
States v. Mendoza, 782 F.3d 1046, 1048 (8th Cir. 2015) (citing
United States v. Schwab, 85 F.3d 326, 327 (8th Cir. 1996)); United
States v. Cawley, 48 F.3d 90, 93 (2d Cir. 1995). Respectfully,
these decisions don't change our minds. None of them engaged with
the text of § 4B1.2 (only Crawley even quoted it) or explained
what work "as an element" (not to mention "prohibits") is doing
there, if not to invite the same categorical approach the Court
has held it commands in the U.S. Code. See Nijhawan, 557 U.S. at
- 22 -
34; Leocal, 543 U.S. at 7; Taylor, 495 U.S. at 600–01. Instead,
they (like the government) rely on a statement in the commentary
that the "[t]he grade of violation does not depend upon the conduct
that is the subject of criminal charges or of which the defendant
is convicted in a criminal proceeding. Rather, the grade of the
violation is to be based on the defendant's actual conduct."
U.S.S.G. § 7B1.1, cmt. n.1; see Golden, 843 F.3d at 1166; Schwab,
85 F.3d at 327. But if the Application Note really required courts
to grade violations based only on actual conduct, and ignored the
"offense under federal or state law" that the defendant violated,
the Note would clash with the text, and the text would prevail.
See United States v. Soto-Rivera, 811 F.3d 53, 60 (1st Cir. 2016).
Step Two: Actual Conduct
Anyway, in our view, the text steers clear of that
collision, since it jibes with Application Note 1. Because once
the government identifies a "crime of violence" or "controlled
substance offense" — whether in the form of an "indivisible"
statute, or a discrete "offense" defined in a "divisible" statute
— the court must look at the defendant's actual conduct to
determine (by a preponderance of the evidence) whether that
"conduct constituted" (that is, whether he committed) the covered
offense. See Carter, 730 F.3d at 192 (holding that "[t]he courts
may consider a defendant's actual conduct in determining whether
they have broken the law"); accord Willis, 795 F.3d at 992–94. In
- 23 -
doing so, the court may consider live testimony and other evidence
admissible in revocation proceedings, including "affidavits,
depositions," "documentary evidence," and reliable hearsay.
United States v. Marino, 833 F.3d 1, 5 (1st Cir. 2016) (quoting
Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5 (1973); see also United
States v. Rondón-García, 886 F.3d 14, 21 (1st Cir. 2018)
(explaining that evidence supporting a sentence must have
"sufficient indicia of trustworthiness" to prove it's probably
accurate (quoting United States v. Rodríguez, 336 F.3d 67, 71 (1st
Cir. 2003)); U.S.S.G. § 6A1.3.9
García was with us in his thinking until that last point.
In his telling, at least in cases like this one, where the
government relies on documentary evidence from the state
prosecution (instead of live testimony) to show the defendant
committed a Grade A violation, the revoking court may only consult
Shepard documents (to review: papers from the defendant's record
of conviction, like the plea colloquy and charging documents) to
decide what crime was committed. Throughout his briefs, he cites
various decisions where we required Shepard records to determine
the defendant's crime of conviction. See, e.g., Ramos-González,
9 We do not here decide whether Rule 32.1(b)(2)(C) (entitling
the supervisee to "question any adverse witness" at a revocation
hearing "unless the court determines that the interest of justice
does not require the witness to appear") applies to evidence used
only to determine the post-revocation sentence.
- 24 -
775 F.3d at 507 (vacating defendant's sentence under the Career
Offender guideline because the government did not provide Shepard
records showing that the defendant's prior conviction under a
divisible statute was for a "violent" offense; "[a]lthough the
police complaint described a physically violent interaction,
Ramos's admission of guilt may not have incorporated those
details"); Rivera, No. 14-2039 (judgment), at *1 (vacating
sentence enhanced based on prior conviction for "crime of violence"
under U.S.S.G. § 2L1.2(b)(1)(A) for the same reason).
But that's just it; the enhancements applied in those
cases required "convictions" for covered offenses. So to apply
them, the courts needed Shepard documents to determine what the
defendant "necessarily admitted" when he pled guilty, i.e., "what
crime, with what elements, the defendant was convicted of."
Mathis, 136 S. Ct. at 2249 (citing Shepard, 544 U.S. at 26)
(emphasis ours); see also United States v. Serrano-Mercado, 784
F.3d 838, 842 (1st Cir. 2015) (explaining that "we look to . . .
Shepard documents . . . not to determine the conduct the defendant
engaged in while committing an offense, as such conduct is of no
relevance," but instead "to identify . . . the actual offense of
conviction" (citing Descamps, 133 S. Ct. at 2281)). Yet, as García
acknowledges, § 7B1.1(a)(1) asks a different question: whether
the defendant actually committed (whether his "conduct
constitutes") the qualifying crime. That question demands a
- 25 -
different answer, and the records of conviction are not the only
ones reliable enough to provide it. See United States v. Bueno-
Beltrán, 857 F.3d 65, 67–68 (1st Cir. 2017) (holding that the
district court properly considered detailed and corroborated
witness statements and drug field tests to determine that defendant
committed new crimes in violation of his conditions of supervised
release).10
With the legal framework in place, on to García's alleged
crimes.
García's Drug Offenses
As we read the judge's decision, she made two independent
findings about García's alleged drug offenses: first, that he
pled guilty to attempting or conspiring to possess a controlled
10 By the way, Eirby did not hold otherwise. There, the
defendant admitted (by pleading guilty in state court) that he
committed the Maine crime in question: sexual abuse of a minor
under 17-A M.R.S.A. § 254(1)(A-2). 515 F.3d at 34. He urged that
the district court misclassified this admitted crime as a "crime
of violence"; we disagreed — and categorically so. See id. at 37–
39 (explaining that "the conduct criminalized by section 254(1)(A-
2) categorically poses a serious risk of physical injury," making
it a crime of violence under the residual clause and a Grade A
violation). As a result, we did not need to decide whether the
district court could look beyond Shepard documents to find that
the defendant's conduct constituted an offense different from the
one he pled guilty to. As we hold today, the answer is yes, it
can — any dicta in Eirby, 515 F.3d at 37 (stating that if the
statute is divisible, the court "must . . . determine whether the
record of conviction reveals all the elements of a violent crime")
notwithstanding. See United States v. Starks, 861 F.3d 306, 323
(1st Cir. 2017) (explaining that dicta, i.e., statements that are
"not necessary to the court's conclusion," are not binding).
- 26 -
substance with intent to distribute it, in violation of Article
406, and second, that he actually possessed cocaine and marijuana
with intent to distribute them, which infracted Article 401.
Article 401 (as relevant here) prohibits the possession of
marijuana and cocaine (among other drugs) with intent to
"distribute, dispense, transport or conceal" it, P.R. Laws Ann.
tit. 24, § 2401, while Article 406 criminalizes the lesser offense
of "attemp[ing] or conspir[ing]" to commit any offense under Puerto
Rico's CSA, including simple possession under Article 404, P.R.
Laws Ann. tit. 24, § 2406.
Article 406
As García correctly points out, after his revocation, we
undercut the trial court's first line of reasoning. In Martínez-
Benítez, the defendant (like García) was charged with possession
with intent to distribute a drug (heroin) under Article 401,
reclassified to an unspecified Article 406 conspiracy/attempt
charge before he pled guilty. 914 F.3d at 3. And as here, the
district judge assumed that "if a defendant pleads guilty to an
Article 406 attempt/conspiracy violation following an Article 401
possession-with-intent-to-distribute charge, then it always means
he stands convicted of attempt/conspiracy to possess drugs with
distributive intent." Id. at 7. So the judge found Martínez-
Benítez had a past conviction for a controlled substance offense
and jacked up his offense level under § 2K2.1(a)(4)(A). See
- 27 -
Martínez-Benítez, 914 F.3d at 3–4. On appeal, we rejected that
approach, holding that the government couldn't bank on the
"reclassified" intent-to-distribute charge to prove the defendant
pled guilty to conspiring/attempting to commit a specific crime:
to possess the drug with intent to distribute it. Id. at 5–8
(noting that the defendant's three-year suspended sentence was
"certainly consistent with his having pled to
attempting/conspiring to possess heroin without distributive
intent" under Article 404, since it was below Article 404's five-
year maximum). The government had to rely on Shepard documents,
and those it produced weren't helpful. Id. So we vacated and
remanded for resentencing without the conviction-based
enhancement. Id.
Given Martínez-Benítez, the government does not defend
the judge's conclusion that García pled guilty to
attempting/conspiring to distribute drugs under Article 406. So
if the judge had hinged her decision on it, García's case for
reversal would be stronger. See Pullman-Standard v. Swint, 456
U.S. 273, 287 (1982) ("[I]f a district court's findings rest on an
erroneous view of the law, they may be set aside on that basis.").
As we've explained, however, unlike in Martínez-Benítez (where
§ 2K2.1(a)(4)(A) demanded a prior "conviction" for a controlled
substance offense) the judge did not need to rely on García's
guilty plea to find a Grade A violation under § 7B1.1(a)(1)(A)(ii)
- 28 -
(which asks only whether the defendant committed the covered
offense). And as we've described, she did not. Rather, she laid
a separate ground for the A Grade; she also looked to García's
actual conduct, gleaned from other evidence (we'll review it in a
minute), to find he possessed marijuana and cocaine with intent to
distribute — which broke Article 401.
Article 401
Article 401 is not an out-and-out ("categorical," in the
now familiar lingo) controlled substance offense. In arguing
otherwise, the government runs up against Dávila-Félix, in which
we held that Article 401 "cannot categorically qualify as a
'controlled substance offense' within the meaning of § 4B1.2(b)."
667 F.3d at 56. We reasoned that "in addition to criminalizing
the more obvious drug trafficking offenses, such as distribution,
dispersal and possession with intent to distribute controlled
substances, [it] also criminalizes actions that are not commonly
considered drug trafficking offenses, such as concealment of a
controlled substance." Id. And since the statute proscribes
"conduct that falls outside the guidelines definition" (i.e., mere
concealment), it's ineligible for full membership in the
"controlled substance offense" club. Id.
Conceding that Dávila-Félix is on point, the government
urges that the decision's "interpretation of Article 401 is
contradicted by the Puerto [Rico] Supreme Court," citing Pueblo v.
- 29 -
Rosario Cintrón, 102 D.P.R. 82, 86, 2 P.R. Offic. Trans. 107, 112
(P.R. 1974).11 Per the government, Rosario Cintrón "expressed that
concealment or transportation of drugs under Article 401 always
involved drug trafficking, not mere possession," which means
Article 401 is "categorically . . . a controlled substance offense
under the guidelines." Under "the law of the circuit" rule, "newly
constituted panels" (like us) "are, for the most part, bound by
prior panel decisions closely on point" (like Dávila-Félix).
United States v. Barbosa, 896 F.3d 60, 74 (1st Cir. 2018) (quoting
Williams v. Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995)).
Yet, we (as a panel) may use Rosario Cintrón to overturn Dávila-
Félix because, says the government, "one of the narrow exceptions
[to the rule] includes when the holding of a previous panel 'is
contradicted by controlling authority.'" Gov.'s Br. at 50 (quoting
United States v. Troy, 618 F.3d 27, 35–36 (1st Cir. 2010)).
Which is a nice place to stop — if you don't like the
rest of that sentence. The full version reads, after all:
A departure from the rule is warranted only when the
earlier holding is "contradicted by controlling
authority, subsequently announced" (say, a decision of
the authoring court en banc, a Supreme Court opinion
directly on point, or a legislative overruling), or in
the "rare instances in which authority that postdates the
original decision, although not directly controlling,
nevertheless offers a sound reason for believing that the
11
"[A] federal court is bound by the construction of state
law rendered by the highest court of the state," or in this case,
the Commonwealth. United States v. Holloway, 630 F.3d 252, 259
(1st Cir. 2011).
- 30 -
former panel, in light of fresh developments, would change
its collective mind."
Troy, 618 F.3d at 35–36 (citations omitted) (emphases added) (going
on to find the appellant's cases "lack[ed] force" because they
"predate[d]" the decision she sought to overrule and "thus [were]
impuissant against the law of the circuit rule"); see also United
States v. Mouscardy, 722 F.3d 68, 77 (1st Cir. 2013) ("[W]e are
'bound by a prior panel decision, absent any intervening
authority.'" (quoting United States v. Grupee, 682 F.3d 143, 149
(1st Cir. 2012)); United States v. Holloway, 499 F.3d 114, 118
(1st Cir. 2007) ("[O]nly the Supreme Court or an en banc court can
overturn prior panel precedent in ordinary circumstances[.]"). In
other words, the government can't dislodge Dávila-Félix with a
case decided thirty-seven years earlier — at least not at this
juncture.
That said, García does not dispute that Article 401 does
criminalize § 4B1.2(b)-covered conduct: the possession of cocaine
with intent to distribute. So as described earlier, that it also
covers non-qualifying drug offenses (i.e., possession with intent
to conceal) doesn't end our journey. Instead, we ask whether
Article 401 is "divisible": i.e., whether Article 401 possession
with intent to distribute is a discrete crime, distinct from
"intent to conceal," with its own elements. See Faust, 853 F.3d
at 51. The Puerto Rico Supreme Court has indicated that it is;
- 31 -
according to that tribunal (which has the final word on Article
401's scope), the statute characterizes "possession . . . with
intent to distribute" and "transportation and concealment . . . as
separate offenses" to be charged as separate counts. Fuentes
Morales v. Superior Court, 102 D.P.R. 705, 708, 2 P.R. Offic.
Trans. 910, 914 (P.R. 1974). "When a ruling of that kind exists,
a sentencing judge need only follow what it says." Mathis, 136 S.
Ct. at 2256; see also Martínez-Benítez, 914 F.3d at 5 (stating
that "attempt/conspiracy to possess [cocaine] with distributive
intent" under Article 406 (referencing Article 401) qualifies as
a discrete "controlled substance offense"). García does not argue
otherwise; in fact, he conceded below that his charged offense
under "Article 401 . . . possession with intent to distribute" is
"a controlled substance offense." So if there was enough evidence
to find that García possessed the drugs with distributive intent,
the district judge could reasonably call that crime a Grade A
violation.
Sufficient Evidence
In the district judge's view, there was ample evidence
that García possessed "cocaine, marijuana, and pills in
distribution amounts." García disagrees.
Normally, we'd review the judge's factfinding for clear
error, reversing if a review of the whole record gives us a
"strong, unyielding belief" that she messed up. United States v.
- 32 -
Nuñez, 852 F.3d 141, 144 (1st Cir. 2017); see also United States
v. Oquendo-Rivera, 586 F.3d 63, 67 (1st Cir. 2009). But that
standard applies only when the appellant preserved his challenge
with an objection "specific" enough "to call the district court's
attention to the asserted error." United States v. Soto-Soto, 855
F.3d 445, 448 n.1 (1st Cir. 2017). And García's only pitch to the
district judge was the one we've just debunked: that the judge
had to zero-in on the Shepard-approved records of his Puerto Rico
convictions to see if García pled guilty to a controlled substance
offense and ignore the other evidence suggesting he actually
committed one. The probation officer submitted that other evidence
to the parties and the judge before the final hearing. First,
there were the sworn complaints charging that García possessed
marijuana and cocaine with the intent to distribute them. Second,
García admitted to the allegations in the probation officer's
motions, which charged that he possessed those same drugs at a
drug point. And third, drug field tests (run by the Puerto Rico
police and submitted by probation) showed that García had fifteen
vials of cocaine and thirty-nine vials of marijuana, along with
ten baggies of pills. Below, García did not contend that this
evidence (if it could be considered) failed to show that he more-
- 33 -
likely-than-not possessed marijuana and cocaine with intent to
distribute them.12
Since he raises this challenge for the first time on
appeal, the judge's decision will stand unless García shows that
she made a plain ("clear or obvious") error that "affected [his]
substantial rights" and "seriously impaired the fairness,
integrity, or public reputation of judicial proceedings" — a high
bar. Soto-Soto, 855 F.3d at 448. García doesn't clear this
hurdle. He points out (correctly, as we explain in another opinion
issued today, see United States v. Colón-Maldonado, No. 18-1388,
___ F. 3d ___ [Slip Op. at 16–25]) that the bare accusations in
the Puerto Rico complaints and probation officer's motions,
standing alone, would not support the Grade A finding. But he
doesn't tell us why it's obvious that his admission to probation's
allegations plus the field test results (together saying that he
had sixty-four separate containers of marijuana, cocaine, and
pills at a drug point) don't cut it — even though we've previously
found no "error, plain or otherwise, in [a] district court's
12
By the way, García has not — neither below nor before us —
argued that he should have been given an opportunity to question
the arresting officers, the agent who tested the drugs, or any
other witness under Rule 32.1(b)(2)(C). Cf. Bueno-Beltrán, 857
F.3d at 68; Marino, 833 F.3d at 4–7. Nor does he contend he lacked
a fair opportunity to request an evidentiary hearing or to argue
that his own admissions and the drug field tests (taken together)
were insufficient to prove he actually possessed the drugs with
distributive intent. See United States v. Rodriguez, 919 F.3d
629, 635 (1st Cir. 2019).
- 34 -
consideration of [such] field test results to support [a] finding
that [a defendant] violated the terms of his supervised release,"
Bueno-Beltrán, 857 F.3d at 68, and even though "[w]e have held
that a large amount and individual packaging of drugs is sufficient
to demonstrate an intent to distribute," United States v. Ayala-
García, 574 F.3d 5, 13 (1st Cir. 2009); accord Mohamed, 920 F.3d
at 106. Indeed, he does not address the field test results at
all. So he gives us no reason to conclude that the judge committed
plain error when she found García infracted Article 401 of the
Puerto Rico CSA — a "controlled substance offense" under the
Guidelines, U.S.S.G. §§ 4B1.2(b), 7B1.1(a)(1)(A)(ii).
CODA
Because we find the district judge did not commit
reversible error when she tagged García's drug offense with an A
Grade, we need not decide whether either of his domestic abuse
offenses (under Article 3.1 or 3.4 of Puerto Rico Domestic Violence
Law 54) deserved that label. See U.S.S.G. § 7B1.1(b) ("Where there
is more than one violation of the conditions of supervision, or
the violation includes conduct that constitutes more than one
offense, the grade of the violation is determined by the violation
having the most serious grade."); United States v. Hinkley, 803
F.3d 85, 93 (1st Cir. 2015) (noting that a guideline error is
harmless if it doesn't change the range). And so, all that is
left to say is
- 35 -
Affirmed.
- 36 -