United States Court of Appeals,
Eleventh Circuit.
No. 93-9225.
UNITED STATES of America, Plaintiff-Appellee,
v.
Fernando SMITH, Defendant-Appellant.
June 9, 1995.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:93-CR-138-2), Jack T. Camp, Judge.
Before HATCHETT, Circuit Judge, HENDERSON, Senior Circuit Judge,
and YOUNG*, Senior District Judge.
HATCHETT, Circuit Judge:
Appellant, Fernando Smith, appeals his bank robbery conviction
and sentence, asserting that (1) the district court improperly gave
the jury an instruction pursuant to Allen v. United States, 164
U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); (2) the government
presented insufficient evidence to sustain his conviction; (3) the
district court erred in enhancing his sentence for possessing a
firearm during the commission of the crime; and (4) the district
court erroneously sentenced him as a career offender. Smith's
first three grounds for appeal lack merit and do not warrant
further consideration. We reject Smith's fourth contention that
the Sentencing Commission lacks statutory authority to include
attempts to commit narcotics crimes as controlled substances
offenses for purposes of determining career offender status.
BACKGROUND
*
Honorable George C. Young, Senior U.S. District Judge for
the Middle District of Florida, sitting by designation.
On July 22, 1993, a jury in the Northern District of Georgia
found Smith guilty of robbing a bank in violation of 18 U.S.C. §
2113(a). Due to Smith's prior state court convictions in Michigan
for armed robbery and attempted possession with intent to deliver
cocaine, the district court sentenced him as a career offender,
pursuant to United States Sentencing Guidelines (U.S.S.G.) section
4B1.1. On September 28, 1993, the district court imposed a
sentence of 210 months of imprisonment and 3 years of supervised
release.
CONTENTIONS
Smith contends that he does not have a criminal history
sufficient to warrant sentencing as a career offender because his
prior state conviction for attempted possession with intent to
deliver cocaine does not, under Congress's mandate to the
Sentencing Commission, constitute a "controlled substance offense"
under U.S.S.G. § 4B1.1. Therefore, he argues that the Commission
exceeded its authority in counting attempts to commit narcotics
crimes as qualifying offenses for purposes of calculating career
offender status. Accordingly, he asserts that the district court
erred in sentencing him as a career offender.
The government responds that the Commission possesses
statutory authority to count attempts to commit drug crimes as
predicate offenses for determining career offender status; thus,
the district court did not err in its sentencing.
DISCUSSION
This court applies the de novo standard of review when
interpreting questions of law arising under the Sentencing
Guidelines. United States v. Rojas, 47 F.3d 1078, 1080 (11th
Cir.1995).
Section 4B1.1 of the Sentencing Guidelines classifies a
defendant as 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. Smith concedes that the first and second
criteria apply to him. The question before us, therefore, focuses
on the third requirement: specifically, whether Smith's prior
conviction for attempted possession with intent to distribute
cocaine properly constitutes a "controlled substance offense" under
section 4B1.1.
Section 4B1.2(2) of the guidelines defines the term
"controlled substance offense" to mean "an offense under a federal
or state law prohibiting 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(2). Application Note 1 to the commentary to section 4B1.2
states that a "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). We have held
previously that, when assessing whether to count a prior state
conviction for career offender sentencing purposes, "a court should
look at the elements of the convicted offense...." United States
v. Lipsey, 40 F.3d 1200, 1201 (11th Cir.1994). Looking at the
elements of attempted possession with intent to deliver cocaine, we
conclude that the conviction at issue is a "controlled substance
offense" under sections 4B1.1 and 4B1.2(2). In short, the district
court had ample authority to sentence Smith as a career offender.
Smith contends, nonetheless, that the Sentencing Commission
exceeded its statutory authority in including attempts to commit
narcotics offenses within the purview of section 4B1.1. Smith
first points to the Background Commentary to section 4B1.1, which
states, in pertinent part: "28 U.S.C. § 994(h) mandates that the
Commission assure that certain "career' offenders, as defined in
the statute, receive a sentence of imprisonment "at or near the
maximum term authorized.' Section 4B1.1 implements this mandate."
U.S.S.G. § 4B1.1, comment. (backg'd). Based on this commentary,
Smith argues that only those offenses enumerated in section 994(h)
can serve as predicate controlled substance offenses for section
4B1.1 sentencing purposes.
Section 994(h) provides:
(h) The Commission shall assure that the guidelines
specify a sentence to a term of imprisonment at or near the
maximum term authorized for categories of defendants in which
the defendant is eighteen years old or older and—
(1) has been convicted of a felony that is—
(A) a crime of violence; or
(B) an offense described in section 401 of the
Controlled Substances Act (21 U.S.C. 841), sections
1002(a), 1005, and 1009 of the Controlled
Substances Import and Export Act (21 U.S.C. 952(a),
955, and 959) and section 1 of the Act of September
15, 1980 (21 U.S.C. 955a); and
(2) has previously been convicted of two or more
prior felonies, each of which is—
(A) a crime of violence; or
(B) an offense described in section 401 of the
Controlled Substances Act (21 U.S.C. 841), sections
1002(a), 1005, and 1009 of the Controlled
Substances Import and Export Act (21 U.S.C. 952(a),
955, and 959) and section 1 of the Act of September
15, 1980 (21 U.S.C. 955a).
28 U.S.C. § 994(h). Smith argues that because the offense of
attempting to commit a narcotics crime is not "described in" any of
the statutes enumerated in section 994(h)(2)(B), the Commission
cannot lawfully include attempts as predicate offenses for purposes
of determining career offender status.1
Smith's position has some support. The Fifth and District of
Columbia Circuits have held that the Commission exceeded its
authority in including conspiracy to commit a drug offense within
the ambit of section 4B1.1. See United States v. Bellazerius, 24
F.3d 698, 700-02 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct.
375, 130 L.Ed.2d 326 (1994); United States v. Price, 990 F.2d
1367, 1368-70 (D.C.Cir.1993). In so doing, those courts held that
section 994(h) serves as the sole statutory basis for the career
offender provision. See Bellazerius, 24 F.3d at 702 ("By
identifying section 994(h) as its source of authority, the
Sentencing Commission impliedly disclaimed reliance on other
sources of authority."); Price, 990 F.2d at 1369 ("We must
conclude that the Commission fashioned Ch. 4, part B solely as an
implementation of § 994(h).").
Recently, however, this court, in holding that a conviction
1
Title 21 U.S.C. § 846 governs attempt and conspiracy to
commit a drug offense. The statute reads: "Any person who
attempts or conspires to commit any offense defined in this
subchapter shall be subject to the same penalties as those
prescribed for the offense, the commission of which was the
object of the attempt or the conspiracy." 21 U.S.C. § 846.
for conspiracy to commit a narcotics crime is a "controlled
substance offense" under section 4B1.1, has declined to follow the
reasoning of Bellazerius and Price. United States v. Weir,51 F.3d
1031, 1032 (11th Cir.1995). The court in Weir held that "although
the commentary to section 4B1.1 states that the career offender
provision is implementing the mandate of 28 U.S.C. § 994(h), it
does not suggest that section 994(h) is the only mandate for that
provision. 28 U.S.C. § 994(a), the Guidelines' enabling statute,
provides independent grounds for the career offender provision...."
Weir, 51 F.3d at 1031-32 (emphasis added). Indeed, the Commission
states that "[t]he guidelines and policy statements" it promulgates
"are issued pursuant to Section 994(a) of Title 28, United States
Code." U.S.S.G., Ch. 1, Part A, section 1. Section 994(a)(2)
provides that the Commission shall promulgate "general policy
statements regarding application of the guidelines or any other
aspect of sentencing or sentence implementation that in the view of
the Commission would further the purposes set forth in section
2
3553(a)(2) of title 18, United States Code...." 28 U.S.C. §
994(a)(2). In sum, "[t]he authority granted by § 994(a) is
implicit in all the provisions of the guidelines." United States
v. Damerville, 27 F.3d 254, 257 (7th Cir.), cert. denied, --- U.S.
----, 115 S.Ct. 445, 130 L.Ed.2d 355 (1994) (emphasis in original).
Therefore, we hold that the Commission, in construing attempts to
2
Section 3553(a)(2) states that sentences should reflect the
seriousness of the offense, promote respect for the law, provide
just punishment, afford adequate deterrence to criminal conduct,
protect the public from further crimes of the defendant, and
provide the defendant with needed correctional treatment. 18
U.S.C. § 3553(a)(2).
commit narcotics crimes as controlled substance offenses for
purposes of determining career offender status, acted within its
authority pursuant to section 994(a).
Finally, we apply United States v. Stinson, --- U.S. ----, 113
S.Ct. 1913, 123 L.Ed.2d 598 (1993), where the Supreme Court decided
"that commentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline." Stinson, --- U.S.
at ----, 113 S.Ct. at 1915. Application Note 1 to the commentary
to section 4B1.2 explains that the term "controlled substance
offense" located in guideline section 4B1.1 includes the offense of
"attempting to commit" a narcotics crime. U.S.S.G. § 4B1.2,
comment. (n. 1). This commentary does not run afoul of the
Constitution, or, as discussed above, a federal statute; nor is it
inconsistent with, or a plainly erroneous reading of, sections
4B1.1 or 4B1.2. As a result, the commentary constitutes "a binding
interpretation" of the term "controlled substance offense."
Stinson, --- U.S. at ----, 113 S.Ct. at 1920. Accordingly, the
district court properly followed the commentary in sentencing Smith
as a career offender.
CONCLUSION
We reject Smith's challenges to his conviction and sentence,
and thus affirm the judgment of the district court.
AFFIRMED.