United States Court of Appeals
For the First Circuit
No. 19-1529
UNITED STATES OF AMERICA,
Appellee,
v.
RAYMOND RODRÍGUEZ-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Howard, Chief Judge,
Kayatta, Circuit Judge,
and Casper,* District Judge.
Kevin Lerman, Research & Writing Specialist, with whom Eric
Alexander Vos, Federal Public Defender, and Franco L. Pérez-
Redondo, Assistant Federal Public Defender, Supervisor, Appeals
Division, were on brief, for appellant.
Julia M. Meconiates, Assistant United States Attorney, with
whom W. Stephen Muldrow, United States Attorney, and Mariana E.
Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.
* Of the District of Massachusetts, sitting by designation.
March 4, 2021
KAYATTA, Circuit Judge. Once again, we are called upon
to consider the circumstances in which a sentencing enhancement
for prior involvement with controlled substances is appropriate.
Section 2K2.1(a) of the United States Sentencing Guidelines
provides for certain sentencing enhancements in situations where,
among other conditions, the defendant previously has been
convicted of controlled substance offenses. See U.S.S.G.
§ 2K2.1(a); see also § 4B1.1. Section 4B1.2(b), in turn, defines
"controlled substance offense[s]." Application Note 1 to
section 4B1.2 further explains that conspiring to commit a
controlled substance offense is itself a controlled substance
offense.
In United States v. Lewis, we rejected as contrary to
binding circuit precedent the contention that Application Note 1
overreached by adding "conspiring" to the list of offenses
contained in the Guideline text itself. 963 F.3d 16, 21—23 (1st
Cir. 2020). In so doing, we set aside as unpreserved a narrower
contention: That the term "conspiring," as used in Application
Note 1, includes only a so-called generic form of conspiracy that
has as an element an overt act in furtherance of the conspiracy,
and therefore does not include a conspiracy charged under 21 U.S.C.
§ 846, which admittedly has no such overt act element. Id. at 21,
26-27 (finding only no clear error in light of circuit split).
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This appeal now requires that we address that narrower
contention head-on without the leeway afforded by plain error
review. Our answer matters because the classification of an
offense as a controlled substance offense often results in longer
recommended sentences by raising base offense levels, see, e.g.,
U.S.S.G. § 2K2.1(a), and section 846 most commonly serves as the
vehicle for charging conspiracy offenses in federal drug cases.
To date, the six circuits that have addressed this issue have split
four to two1 in deciding whether the absence of an overt act
requirement precludes section 846 conspiracies from qualifying as
1 Compare United States v. Tabb, 949 F.3d 81, 87—89 (2d Cir.
2020) (holding that a conviction for conspiracy to commit a
controlled substance offense under section 846 qualifies as a
conviction for a controlled substance offense under U.S.S.G.
§ 4B1.2(b) and Application Note 1), United States v. Rivera-
Constantino, 798 F.3d 900, 903 (9th Cir. 2015) (same in the context
of U.S.S.G. § 2L1.2(b)), United States v. Sanbria-Bueno, 549 F.
App'x 434, 438–39 (6th Cir. 2013) (unpublished) (collecting cases
and reaching the same conclusion under U.S.S.G. § 2L1.2(b)), and
United States v. Rodriguez-Escareno, 700 F.3d 751, 753—54 (5th
Cir. 2012) (same), with United States v. McCollum, 885 F.3d 300,
309 (4th Cir. 2018) (holding that conviction under another federal
conspiracy statute that does not require an overt act, 18 U.S.C.
§ 1959(a)(5), does not qualify as a conspiracy for the purposes of
Application Note 1 to section 4B1.2), United States v. Whitley,
737 F. App'x 147, 149 (4th Cir. 2018) (unpublished) (holding that
section 846 is a categorical mismatch with generic conspiracy and
therefore the enhancement does not apply for a section 846
conviction), and United States v. Martinez-Cruz, 836 F.3d 1305,
1314 (10th Cir. 2016) (holding in the context of U.S.S.G. §
2L1.2(b) that section 846 is a categorical mismatch with generic
conspiracy and that therefore the enhancement did not apply).
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conspiracies under either section 2K2.1(a) or section 2L1.2(b) of
the Guidelines.2
For the following reasons, we join the growing majority
of circuits and hold that a conviction under 21 U.S.C. § 846 for
conspiring to commit a controlled substance offense qualifies as
a conviction for a controlled substance offense under
section 4B1.2(b) of the Guidelines, even though section 846 does
not require proof of an overt act.
I.
On June 14, 2018, officers of the Puerto Rico Police
Department served a state-issued search warrant at an apartment in
San Juan, Puerto Rico. Rodríguez-Rivera was inside the apartment
at the time, along with a woman and children. While conducting a
search of the apartment, police discovered a Glock pistol that had
been modified to shoot automatically, two bulletproof vests, and
several dozen rounds of ammunition. Rodríguez-Rivera took
2 Section 2L1.2(b)(2)(e) provides for a sentencing
enhancement for individuals who unlawfully entered or returned to
the United States if they have been convicted of three or more
"drug trafficking offenses," i.e., "offense[s] under federal,
state, or local law that prohibit[] the manufacture, import,
export, distribution, or dispensing of . . . or the possession of
a controlled substance . . . with intent to manufacture, import,
export, distribute, or dispense." U.S.S.G. § 2L1.2 cmt. n.2.
Prior to 2016, Application Note 5 to that guideline stated that
drug trafficking offenses "include the offenses of aiding and
abetting, conspiring, and attempting[] to commit such offenses."
See U.S.S.G. App. C, Amend. 802 (effective Nov. 1, 2016). This
Application Note was deleted in the 2016 amendments to
section 2L1.2. See id.
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responsibility for the contraband and was arrested. Later, during
an interview with federal agents, he provided a written statement
acknowledging possession of the firearm.
A federal grand jury returned an indictment charging
Rodríguez-Rivera with unlawful possession of a firearm as a
convicted felon, in violation of 18 U.S.C. § 922(g)(1), and
unlawful possession of a machine gun, in violation of 18 U.S.C.
§ 922(o). He pled guilty to both charges.
Rodríguez-Rivera had been previously convicted of
conspiracy to distribute cocaine, cocaine base, and heroin, in
violation of 21 U.S.C. § 846, and was sentenced to 24 months'
imprisonment for that offense. The Probation Office's presentence
investigation report (PSR) for the instant offense consequently
recommended that the district court apply a controlled substance
enhancement, pursuant to section 2K2.1(a), and assigned Rodríguez-
Rivera a base offense level of 22. Rodríguez-Rivera objected,
citing an unpublished Fourth Circuit ruling, United States v.
Whitley, 737 F. App'x 147 (4th Cir. 2018), in support of his
argument that a conviction under section 846 is not a controlled
substance offense under the Guidelines and that therefore, his
base offense level should be 20, rather than 22.
The district court agreed with Probation and applied the
enhancement, which added six and eight months of imprisonment,
respectively, to the bottom and top of the Guidelines sentencing
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range. The district court sentenced Rodríguez-Rivera to thirty-
eight months' imprisonment and a three-year term of supervised
release. This appeal followed.
II.
We review de novo the district court's interpretation
and application of the Sentencing Guidelines. United States v.
Lewis, 963 F.3d 16, 20 (1st Cir. 2020). In this case, the district
court applied section 2K2.1(a)(3), which provides that the base
offense level will be 22 if:
(A) the offense involved a (i) semiautomatic
firearm that is capable of accepting a large
capacity magazine; or (ii) firearm that is
described in 26 U.S.C. § 5845(a); and (B) the
defendant committed any part of the instant
offense subsequent to sustaining one felony
conviction of either a crime of violence or a
controlled substance offense[.]
U.S.S.G. § 2K2.1(a)(3). The existence of a qualifying firearm is
not in contention in this case, nor is there any claim that
Rodríguez-Rivera was not convicted in 2005 of conspiring to possess
with intent to distribute cocaine, cocaine base, and heroin, in
violation of 21 U.S.C. § 846. Instead, the parties dispute whether
a section 846 conspiracy qualifies as the type of conspiracy that
constitutes a controlled substance offense.
The term "controlled substance offense," as used in
section 2K2.1(a), is defined in section 4B1.2(b) as follows:
an offense under federal or state law,
punishable by imprisonment for a term
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exceeding one year, that prohibits the
manufacture, import, export, distribution, or
dispensing of a controlled substance (or a
counterfeit substance) or the possession of a
controlled substance (or a counterfeit
substance) with intent to manufacture, import,
export, distribute, or dispense.
Application Note 1 to that provision adds that a "controlled
substance offense" "include[s] the offenses of aiding and
abetting, conspiring, and attempting to commit such offenses."
U.S.S.G. § 4B1.2 cmt. n.1. And our controlling circuit precedent
deems that interpretation to be authoritative. See United States
v. Lewis, 963 F.3d at 21–22 (relying on United States v. Piper, 35
F.3d 611, 617 (1st Cir. 1994) and United States v. Fiore, 983 F.2d
1, 3–4 (1st Cir. 1992), abrogated on other grounds by United States
v. Giggey, 531 F.3d 27, 28 (1st Cir. 2008) (en banc)).
In view of this precedent, Rodríguez-Rivera trains his
argument on the definition of the term "conspiring" as used in
Application Note 1. He defines the term in three steps: First,
in deciding what "conspiring" means in this context, he says we
should ascertain the "generic" form of conspiracy offenses. He
then says that the generic form includes as an element the
commission of an overt act in furtherance of the conspiracy.
Finally, because a conviction under section 846 admittedly does
not have as an element the commission of an overt act, he concludes
that his prior conviction does not qualify as a conspiracy offense
for purposes of Guidelines section 2K2.1. Two circuits have more
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or less accepted this argument. See United States v. Martinez-
Cruz, 836 F.3d 1305, 1309, 1314 (10th Cir. 2016); United States v.
McCollum, 885 F.3d 300, 307–09 (4th Cir. 2018).
Our skepticism focuses on the first step in Rodríguez-
Rivera's argument: We see little sense in identifying and adopting
a generic version of the conspiracy offense as the benchmark
against which to compare a violation of section 846. Rather, it
seems apparent that the Guidelines (especially as interpreted in
Application Note 1) tell us what type of conspiracy offense to
look for: One "that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance . . . or the
possession of [the same]." U.S.S.G. § 4B1.2(b). Section 846, as
applied to a controlled substance offense, would seem to qualify:
By barring two or more people from agreeing to manufacture
controlled substances, for example, it would seem to prohibit at
least one common means of drug manufacturing. 21 U.S.C. §§ 846,
841(a).
More generally, and significantly, section 846 is part of
the Controlled Substances Act, and section 846 is the only part of
that Act that specifically makes any form of conspiring a crime.
Given our circuit precedent -- that a controlled substance offense
includes at least some types of conspiracy -- it would be odd
indeed if the definition of a controlled substance offense excluded
the only form of conspiracy prohibited by the Controlled Substances
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Act itself. "Ultimately, context determines meaning, and we 'do
not force term-of-art definitions into contexts where they plainly
do not fit and produce nonsense.'" Johnson v. United States, 559
U.S. 133, 139-40 (2010) (citation omitted) (quoting Gonzales v.
Oregon, 546 U.S. 243, 282 (2006) (Scalia, J., dissenting)).
Resisting this common-sense notion that a conspiracy under
the Controlled Substances Act is a controlled substance offense,
Rodríguez-Rivera argues that United States v. Taylor, 495 U.S. 575
(1990), and its progeny require us to apply the so-called "generic"
definition of conspiracy. In Taylor, the Court did indeed adopt
the generic definition of "burglary" as used in 18 U.S.C. § 924(e).
495 U.S. at 598—99. But the Court did so only after first
determining that Congress's intended understanding of the term was
"not readily apparent," id. at 580, and that the legislative
history suggested "Congress, at least at that time, had in mind a
modern 'generic' view of burglary," id. at 589. Adoption of that
view broadened, rather than narrowed, the scope of encompassed
crimes, in keeping with the intended overall purpose of the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See Taylor, 495
U.S. at 581—84, 598. Here, section 846's inclusion within the
Controlled Substances Act and the lack of any reference to any
generic alternative in the Act counsel against the need to search
elsewhere to know what a controlled substances conspiracy is.
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Neither party has pointed to any legislative history that would
advise to the contrary.
We recognize that since Taylor, the Supreme Court has, in
the context of immigration violations, referred to adopting the
generic view of "illicit trafficking in a controlled substance,"
see Moncrieffe v. Holder, 569 U.S. 184, 192 (2013) (quoting
Nijhawan v. Holder, 557 U.S. 29, 37 (2009)) (employing the
categorical approach to determine whether marijuana possession
always qualifies as "illicit trafficking in a controlled
substance" under the Immigration and Nationality Act), and, in
dicta, referred to adopting the generic view of various offenses
listed as crimes of violence, see Mathis v. United States, 136 S.
Ct. 2243, 2248 (2016) (burglary, arson, extortion). In Descamps
v. United States, too, the Supreme Court looked immediately to the
generic versions of ACCA’s enumerated offenses as the benchmark
against which a predicate offense is to be compared. 570 U.S.
254, 257 (2013) ("To determine whether a past conviction is for
[an ACCA crime], courts use what has become known as the
'categorical approach': They compare the elements of the statute
forming the basis of the defendant's conviction with the elements
of the 'generic' crime -- i.e., the offense as commonly
understood."). And in United States v. Capelton, we (and the
parties) assumed without discussion that we should do the same in
defining “aiding and abetting” under Application Note 1. Capelton,
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966 F.3d 1, 6—7 (1st Cir. 2020). But neither the Supreme Court
nor this court has instructed that all terms in statutes or the
Guidelines must be understood to refer to generic versions of an
offense.
To the contrary, before applying the categorical approach
in Johnson, the Court first determined what the term "physical
force" meant as used in ACCA, without needing to search for any
generic meaning. With that definition of force in hand, the Court
then applied the categorical approach to determine whether a state
offense matched that benchmark. 559 U.S. at 140—42.
The Supreme Court's recent decision in Shular v. United
States confirms that we are on the right track in rejecting a
generic version of conspiracy as the benchmark against which to
compare a violation of section 846. 140 S. Ct. 779, 782 (2020).
At issue in Shular was whether a prior conviction under Florida
law for possessing with intent to distribute cocaine was a "serious
drug offense" under ACCA, 18 U.S.C. § 924(e)(2)(A)(ii). ACCA
defines a serious drug offense as including "an offense under State
law, involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance."
Shular, 140 S. Ct. at 784 (quoting 18 U.S.C. § 924(e)(2)(A)(ii)).
The defendant argued that the gerunds "manufacturing,
distributing, or possessing" need be defined by reference to analog
generic offenses. The Court disagreed on the ground that the
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relevant ACCA provisions described conduct rather than offenses
with elements. The Court reached this conclusion for two reasons.
First, the terms themselves were "unlikely names for
generic offenses," Shular, 140 S. Ct. at 785, in contrast with,
for example, "burglary, arson or extortion." Rather, the ACCA
terms are more readily viewed as descriptions of conduct. Id.
Second, while section 924(e)(2)(B)(ii) uses the formulation X is
Y, (e.g., a crime that "is burglary, arson, or extortion"),
section 924(e)(2)(A)(ii) uses the formulation X involves Y (i.e.,
"an offense . . . involving manufacturing, distributing or
possessing . . . a controlled substance"). This, too, reinforces
the understanding that "the descriptive terms immediately
following the word 'involving' identify conduct." 140 S. Ct. at
785.
For those reasons, the Court eschewed ascertaining the
"generic" meaning of those terms before determining whether the
state law offenses were within ACCA's scope. Id. at 787.
Instead, the Court simply affirmed the Eleventh Circuit's ruling
that in classifying a state offense as a controlled substance
offense it "need not search for the elements of 'generic'
definitions"; rather, it need only ask whether the state offense
involves the requisite conduct. Id. at 784 (quoting United States
v. Smith, 775 F.3d 1262, 1267 (11th Cir. 2014)).
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The guideline at issue in this case -- U.S.S.G.
§ 4B1.2(b), by way of § 2K2.1 -- uses neither the X is Y
formulation nor the X involves Y formulation. Nonetheless, it
tracks the latter formulation in relevant respects, forgoing any
attempt to list generally recognizable offenses in favor of
describing conduct that the offense need "prohibit" ("manufacture,
import, export, distribution, or dispensing"). This conduct is,
in relevant respects, indistinguishable from the conduct at issue
in Shular. U.S.S.G. § 4B1.2(b). So our charge under the
Guidelines is not to define or identify any generic offense as the
measure of a categorical test, but instead to ask whether the
predicate offense "prohibits" the specified conduct.
Application Note 1 admittedly veers closer to the
"X is Y" formulation (a "'controlled substance offense' include[s]
the offense[] of . . . conspiring"). U.S.S.G. § 4B1.2 cmt. n.1.
However, it uses the gerund "conspiring," which naturally refers
to conduct, rather than the offense of "conspiracy." And
"include[s]" is not so far from "involv[es]." The Guideline itself
then makes clear that the key test is whether the aim of the
"conspiring" is certain prohibited conduct. See Piper, 35 F.3d at
19. Section 846 passes this test as well as any generic conspiracy
offense does. U.S.S.G. § 4B1.2(b). All in all, we see nothing
sufficient to overpower the strong sense that conspiring under
section 846 of the Controlled Substances Act was one of many
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offenses the Sentencing Commission had in mind when stating, in
Application Note 1, that the offense of conspiring to commit a
controlled substance offense is a controlled substance offense.3
Having thus concluded that determining whether an
offense is a controlled substance offense under section 2K2.1
requires only that we determine whether the offense prohibits the
conduct specified in section 4B1.2, our work is done without any
need to identify the elements of any "generic" conspiracy offense.
III.
As we said at the outset, we confirmed in Lewis that
circuit precedent regards an offense of conspiracy, within the
meaning of Application Note 1 to section 4B1.2 of the Guidelines,
to be a controlled substance offense under that section. On plain
error review, we left unresolved only whether conspiring under
3 Rodríguez-Rivera contends that we should be guided by
United States v. Benítez-Beltrán, in which this court assessed
whether Benítez-Beltran's prior conviction for attempted murder
under Puerto Rico law qualifies as a "crime of violence" under the
Guidelines. 892 F.3d 462, 465 (1st Cir. 2018). This court applied
the categorical approach, as laid out in Taylor, to both the
inchoate offense -- attempt -- and the underlying crime of
conviction -- murder. Id. at 466. However, Rodríguez-Rivera's
comparison to Benítez-Beltran fails to surmount our Shular
analysis. Section 4B1.2(a) defines a "crime of violence" as any
offense punishable by more than one year of imprisonment that
either "has as an element the use, attempted use, or threatened
use of physical force against the person of another" or is one of
several enumerated crimes, including "murder." Id. (citing
U.S.S.G. § 4B1.2(a) (2016)). As discussed above, section 4B1.2(a)
describes offenses with elements, lending itself to the Taylor
approach, while section 4B1.2(b) describes conduct, as analyzed
above.
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section 846 is "conspiring" within the meaning of Application
Note 1. For the foregoing reasons, we conclude that it is. We
therefore affirm Rodríguez-Rivera's sentence.
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