dissenting:
I.
While Congress left the United States Sentencing Commission largely on its own to devise the Sentencing Guidelines, in certain areas it gave the Commission specific directives. One such directive deals with “career criminal offenders.” It states:
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 *9991009 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).
The language of subsection (2)(B) is quite specific. It classifies as predicate offenses prior violations of five enumerated federal narcotics statutes: “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).” State narcotics offenses are not specified. Nor are some federal narcotics offenses.1
Despite the specificity of this directive, the Sentencing Commission adopted the following career offender provisions:
§ 4B1.1 Career Offender
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.
******
§ 4B1.2 Definitions of Terms Used in Section 4-Bl.l
******
(2) The term “controlled substance offense” means 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: §§ 4B1.1, 4B1.2(2) (emphasis added).
The Sentencing Guidelines thus make virtually all prior felony drug convictions, whether state or federal, count toward career offender sentencing. Because in so doing the Guidelines exceeded their statutory mandate, and because the appellant in this case received a career offender sentence based on a prior state drug conviction,2 I respectfully dissent.
II.
The majority believes that section 994(h) can be read broadly, to include unenumerat-ed state and federal crimes. But a review of the text of the statute in context, its legislative history, and the case law, will show that the statute should be read to encompass only the offenses listed. In addition, because the government’s proposed reading is at best very uncertain, the rule of lenity comes into play. That rule requires resolving any residual doubts in favor of a lenient reading of the statute. Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980).
A.
The most decisive evidence concerning the scope of section 994(h) is the text of the statute itself. The specificity of section 994(h)(2)(B), especially when contrasted with *1000neighboring provisions, reveals an intent to encompass only the listed predicate offenses.
For example, compare 994(h)(2)(B)’s very specific enumeration of federal drug offenses with the very broad language immediately preceding it, defining the other type of predicate offense: “a crime of violence.” 28 U.S.C. § 994(h)(2)(A). Had Congress meant to include all state and federal drug felonies, as it did with crimes of violence, it could have used a similarly broad phrase. Instead, Congress enumerated five specific federal statutes.
Or compare section 994(h)(2)(B) with the section immediately following, in which Congress mandates substantial prison terms for defendants with “a history of two or more prior Federal, State, or local felony convictions for offenses committed on different occasions.” 28 U.S.C. 994(i) (emphasis added).3 The fact that Congress referred to “Federal, State, or local” felony convictions in section 994(i), but did not similarly qualify section 994(h)(2)(B), strongly suggests that section 994(h)(2)(B) refers only to the offenses it names.
The government argues, however, and the majority today accepts, that section 994(h)(2)(B)’s use of the phrase “an offense described in” refers not just to the listed statutes, but to all offenses punishable under them. The Third Circuit took this view in United States v. Whyte, 892 F.2d 1170, 1174 (3rd Cir.1989), cert. denied, 494 U.S. 1070, 110 S.Ct. 1793, 108 L.Ed.2d 794 (1990), the only published decision directly addressing the issue. In Whyte, the court reasoned that if Congress had meant to refer only to violations of the listed statutes, it could have said “convictions obtained under” rather than “offenses described in” the statutes.
But there are difficulties with this approach. First, the observation that Congress could have phrased the statute differently cuts two ways. To be sure, Congress could easily have referred to “convictions obtained under” rather than “offenses described in” the listed statutes; but it could with equal ease have referred to “federal, state, or local ‘offenses described in [the listed statutes],’ ” as it did in section 994(i). Congress took neither course. And — but for the rule of lenity — it is difficult to say which side of this controversy should benefit from Congress’s failure to turn a clearer phrase.
The second difficulty with the Whyte approach is that a very similar approach was disapproved for interpreting a statute much like section 994(h). Title 21 U.S.C. section 841 prohibits the manufacture, distribution, dispensation, or possession with intent to do one of those activities, of a controlled substance. Before its amendment in 1984, 21 U.S.C. section 841(b)(1)(A) provided a severe sentence enhancement (a maximum sentence of 30 rather than 15 years) for anyone who was convicted of violating section 841
after one or more prior convictions of him for an offense punishable under this paragraph, or for a felony under any other ... law of the United States relating to narcotic drugs, marihuana, or depressant or stimulant substances....
21 U.S.C. § 841(b)(1)(A) (1981) (amended 1984) (emphasis added).
The phrase “punishable under this paragraph” is much like the phrase “an offense described in” used in section 994(h)(2)(B). Under Whyte, both would be read to refer to offenses which “could have been charged” under the given statutes. Past state convictions, as well as past federal ones, would result in enhanced sentencing.
But the courts held the section applicable only to past-convictions for the specified federal offenses. See United States v. Johnson, 506 F.2d 305, 307 (7th Cir.1974), cert. denied, 420 U.S. 1005, 95 S.Ct. 1448, 43 L.Ed.2d 763 (1975); United States v. Gates, 807 F.2d 1075, 1081-82 (D.C.Cir.1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 (1987). State convictions were not counted, even if they involved the same conduct prohibited under the federal statutes. Id.
*1001Moreover, and more importantly, that was Congress’s own understanding of the provision. See S.Rep. No. 98-225, 98th Cong., 1st Sess. 258-59 (1983) (noting that under section 841 as then written, “enhanced sentencing is available only in the case of a prior Federal felony drug conviction”) (emphasis added).4
The Third Circuit’s approach in Whyte is thus doubtful. The courts’ and Congress’s view of the pre-amendment “punishable under” language indicates instead that the “offense described in” language refers only to the listed federal statutes, and no others.
B.
The legislative history of section 994(h) does not support a contrary view. Section 994(h) was enacted to provide “a sentence at or near the statutory maximum for repeat violent offenders and repeat drug offenders.” S.Rep. No. 98-225, 98th Cong., 1st Sess. 175 (1983). Congress intended to reserve this “top of the possible sentencing range only for ' the most egregious cases.” S.Rep. No. 98-225, 98th Cong., 1st Sess. 114-15 (1983)'.
This objective — to impose severe punishment on the most serious repeat offenders— by no means compels the majority’s interpretation of section 994(h). In fact, the majority’s reading means that relatively minor state drug convictions can trigger career offender sentencing. In the present case, for example, Rivera’s state conviction was for a street sale of 3.2 grams of heroin. The outcome would be the same if the conviction had been for selling a gram of marijuana. This kind of result cannot easily be squared with Congress’s intent to punish only the most severe offenders. On the other hand, reading section 994(h)’s list of federal offenses as exclusive limits the severe consequences of career offender classification to federally-prosecuted, federally-convicted narcotics recidivists.
C.
Finally, our case law does not provide support for today’s holding. As the majority recognizes, this court’s decision in Sanchez-Lopez does not speak to the question before us today. See Majority Op. at 996, (citing United States v. Sanchez-Lopez, 879 F.2d 541 (9th Cir.1989)). The issue in that case was whether the Guidelines’ reference to state offenses was an “unconstitutional sub-delegation of congressional authority to the various states.” Id. at 560. The parties did not argue, and the court did not consider, whether by including state and unenumerat-ed federal offenses the Guidelines exceeded their statutory authority.5 Consequently, Sanchez-Lopez is not support for the majority’s holding.
III.
Especially without legislative history or case law supporting a different conclusion, the specific enumeration of offenses in section 994(h) should be conclusive. Moreover, *1002to the extent there remains doubt on the question, the rule of lenity comes into play, requiring the statute be given a narrow construction. The Supreme Court has said that courts must not
interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.
Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980) (citations and internal quotation marks omitted). This rule applies whenever
a reasonable doubt persists about a statute’s intended scope even after resort to ‘the language and structure, legislative history, and motivating policies’ of the statute.
Moskal v. United States, 498 U.S. 103, 108, 111 S.Ct. 461, 465, 112 L.Ed.2d 449 (1990) (emphasis in original) (quoting Bifulco, 447 U.S. at 387, 100 S.Ct. at 2252).
That is precisely the situation here. After considering “the language and structure, legislative history, and motivating policies” of section 994(h), we are left at minimum with a “reasonable doubt” about whether section 994(h) encompasses unenumerated offenses. Bifulco prohibits us from resolving this doubt in favor of dramatic increases in the sentences of a class of felons not mentioned in the statute. Rather, our obligation is to give the statute a reading that is at the very least equally plausible: that only the named predicate offenses were intended.
The majority sidesteps application of this important rule. It concedes that “[sjection 994(h) of the statute is ambiguous.” Majority Op. at 995. Under Bifulco, this concession should dispose of the issue. But the majority says its “task here is not to interpret the enabling statute; rather, we must determine whether the Guidelines ... are ‘sufficiently reasonable’ in light of the congressional directive to the Commission.” Id. (citing United States v. Nelson, 919 F.2d 1381, 1382 (9th Cir.1990).
While the majority is quite correct that our duty is to determine whether the Guidelines are “sufficiently reasonable” in light of Congress’s directives, see id., I fail to see how we can discharge that duty without examining what those directives are. Here the majority has agreed that the directives are ambiguous. Majority Op. at 995. The rule of lenity requires resolving that ambiguity in favor of a narrow construction, one encompassing only the listed offenses. It follows that the Sentencing Commission’s contrary interpretation, encompassing unenumerated state and federal offenses, is not “sufficiently reasonable.”
The majority also argues that the rule of lenity may be dispensed with in interpreting section 994 because the section “is not a criminal statute in the sense that it proscribes certain conduct,” but rather is a directive to the Sentencing Commission. Majority Op. at 997. But that should not matter. Section 994(h) is concededly ambiguous. Depending on how that ambiguity is resolved, the statute either does or does not require Rivera to spend an extra six years in jail. This is precisely the kind of situation which calls for the rule of lenity. It makes little sense to ignore the rule simply because section 994(h) does not itself prescribe criminal punishments. The punishments flow directly from section 994(h), whether or not they are contained in it.
Accordingly, the rule of lenity must guide our interpretation of section 994(h). Applied to the section, the rule makes clear — to the extent the text does not already do so — that the statute does not authorize the Guidelines’ expansive list of predicate offenses.
In short, it is not enough to state that “it is not at all clear that Congress intended to exclude state convictions from the definition of ‘prior felony conviction.’ ” Majority Op. at 996. An extra (and quite likely unintended) six years in prison should rest on more than a “guess as to what Congress intended.” Bifulco, 447 U.S. at 387, 100 S.Ct. at 2252.
IV.
This court has authority to conform an errant Guideline to its statutory mandate. See United States v. Wills, 881 F.2d 823, 826-27 (9th Cir.1989) (correcting a Guideline requiring judges to impose consecutive sen*1003tences, where a statute had authorized either consecutive or concurrent sentences). Cf. United States v. Nottingham, 898 F.2d 390, 393-95 (3rd Cir.1990) (“[t]o the extent that the enabling legislation contains specific direction, the guidelines must comport with that direction”) (citing 28 U.S.C. § 994(a)).
Because Sentencing Guideline 4B 1.2(2) exceeds its statutory authority, I would remand this case for resentencing consistent with the directives of 28 U.S.C. § 994(h).
. For example, an excluded federal offense is 21 U.S.C. § 953, prohibiting the exportation of controlled substances from the United States.
. Rivera’s career offender sentence took into account his 1984 state court conviction for possession of 3.2 grams of heroin. Without the state conviction, Rivera’s sentence would have been 714 to 9xk years. With the state conviction, Rivera received a career offender sentence of 14 years.
. Section 994(i) provides, in part:
(i) The Commission shall assure that the guidelines specify a sentence to a substantial term of imprisonment for categories of defendants in which the defendant—
(1) has a history of two or more prior Federal, State, or local felony convictions for offenses committed on different occasions.
28 U.S.C. § 994(i).
. In the Comprehensive Crime Control Act of 1984, Congress changed this facet of section 841, removing the "punishable under” language and explicitly making enhanced sentences applicable to defendants with prior state and foreign drug convictions. Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, Title II, § 502, 98 Stat. 1976, 2068. The majority appears to view this change as evidence that the prior, "punishable under” language was meant to include state offenses. But the reverse is true. As already indicated. Congress itself understood the "punishable under" language to refer only to the listed offenses. That is why it removed that language in amending the statute to add state and foreign offenses.
Significantly, the amendment to 21 U.S.C. § 841 appeared in the same Act which created section 994(h). Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, Title II, § 217(a), 98 Stat. 1976, 2017-26. The fact that Congress inserted an explicit reference to state and foreign drug convictions in section 841, yet made no mention of such convictions while introducing the sentence enhancement provision of section 994(h), suggests strongly that Congress never meant to include state and foreign convictions in the provision not mentioning them.
. In addition, the statement in Sanchez-Lopez that section 994(h) "delineated the types of individuals and conduct" subject to career offender sentencing does not,, as the majority argues, mean that the career offender statute was no more than a general description of the kinds of conduct relevant to enhancement. See Majority Op. at 996 (quoting Sanchez-Lopez, 879 F.2d at 560). The "types of individuals and conduct” intended are listed with specificity: the enumerated offenses, and no others.