UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1197
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID PIPER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya and Cyr, Circuit Judges,
and Zobel,* District Judge.
Peter Clifford, for appellant.
Michael M. DuBose, Assistant United States Attorney, with
whom Jay P. McCloskey, United States Attorney, was on brief, for
appellee.
September 8, 1994
*Of the District of Massachusetts, sitting by designation.
SELYA, Circuit Judge. This appeal asks us to revisit,
SELYA, Circuit Judge.
in a slightly altered form, the question of whether conspiracy
convictions qualify as triggering and/or predicate offenses for
purposes of the career offender provisions of the federal
sentencing guidelines.1 This question has divided the courts of
appeals. On reflection, we adhere to the majority view and
continue to treat certain conspiracy convictions as includable in
determining career offender status. Because the district court
took this (legally proper) approach, and because appellant's only
non-sentence-related assignment of error is impuissant, we affirm
the judgment below.
I. BACKGROUND
On September 2, 1993, in proceedings pursuant to Fed.
R. Crim. P. 11, defendant-appellant David Piper waived indictment
and pleaded guilty to a two-count information charging him with
conspiracy to possess with intent to distribute over 100
kilograms of marijuana, see 21 U.S.C. 841(a)(1), 841(b)(1)(B),
846, and using or carrying a firearm in connection with a drug-
trafficking crime, see 18 U.S.C. 924(c). On February 23, 1994,
the district court imposed a 25-year prison sentence on count 1,
terming Piper a career offender. The court also sentenced Piper
1The career offender guideline applies to an adult defendant
who commits a felony "that is either a crime of violence or a
controlled substance offense," having previously incurred "at
least two prior felony convictions of either a crime of violence
or a controlled substance offense." U.S.S.G. 4B1.1 (Nov. 1993).
We sometimes call the offense of conviction the "triggering
offense" in contradistinction to the "predicate offenses," i.e.,
the prior felony convictions.
2
to an incremental 5-year prison term on the weapons charge.
Piper appeals, alleging error in both the acceptance of
his guilty plea and the application of the career offender
guideline.
II. THE RULE 11 CHALLENGE
Appellant's initial claim of error need detain us only
in the respect that it requires us to make clear that specific
intent to effectuate an underlying substantive offense, and not
an intent to commit the substantive offense oneself, is all that
is necessary to sustain a conspiracy conviction. Before reaching
this vexing point, we first dispatch some necessary
preliminaries.
Although Piper now contends that the district court
erred in accepting a plea to the information, he did not seek to
withdraw his plea below. Consequently, he can prevail on this
afterthought ground only if he demonstrates a substantial defect
in the Rule 11 proceeding itself. See United States v. Mateo,
950 F.2d 44, 45 (1st Cir. 1991); United States v. Parra-Ibanez,
936 F.2d 588, 593-94 (1st Cir. 1991). Appellant's attempts to
meet this exacting standard lack force.
Appellant advances three main arguments in support of
this assigned error,2 each of which centers around the drug-
trafficking count. He asserts that the district court (1)
2Grasping at straws, appellant suggests a variety of other
ways in which he deems the Rule 11 proceeding flawed. These
suggestions range from the jejune to the frivolous. None merit
discussion.
3
mischaracterized the nature and elements of the offense, thereby
frustrating his ability to understand the charge to which he pled
guilty, in derogation of Fed. R. Crim. P. 11(c)(1); (2) failed to
ensure that his plea was voluntary, in derogation of Fed. R.
Crim. P. 11(d); and (3) accepted his plea despite the lack of an
adequate factual basis, in derogation of Fed. R. Crim. P. 11(f).
We have inspected the plea colloquy with care, tested
it in the crucible of Rule 11, see, e.g., Parra-Ibanez, 936 F.2d
at 590 (explaining that the "strictures of Rule 11 . . . are
calculated to insure the voluntary and intelligent character of
the plea"); United States v. Allard, 926 F.2d 1237, 1244-45 (1st
Cir. 1991) (identifying core Rule 11 concerns: absence of
coercion, understanding of charges, and knowledge of consequences
of guilty plea), and find no hint of any mischaracterization. To
the precise contrary, the lower court proceeded in a meticulous
fashion to ensure that appellant understood the gist of the
information. A judge's responsiveness to a defendant's
articulated concerns is of great importance in Rule 11
proceedings. See, e.g., United States v. Buckley, 847 F.2d 991,
999 (1st Cir. 1988) (explaining need for court to respond
appropriately to defendant's questions at change-of-plea
hearing), cert. denied, 488 U.S. 1015 (1989). Here, the judge
not only fulfilled the core requirements of Rule 11, but also
furnished suitably detailed explanations when appellant sought
clarification of certain points. And, moreover, the record is
replete with indications that appellant understood the charges,
4
faced up to them, and chose voluntarily to plead guilty.
We need not paint the lily. An appellate court must
read the transcript of a Rule 11 colloquy with practical wisdom
as opposed to pettifoggery. See United States v. Medina-
Silverio, F.3d , (1st Cir. 1994) [No. 93-1800, slip
op. at 15] (emphasizing that there is no "formula of 'magic
words' in meeting the requirements of Rule 11"]; Allard, 926 F.2d
at 1245 (similar); see also Fed. R. Crim. P. 11(h) (explaining
that, to warrant vacation, irregularities in a plea-taking
proceeding must affect the defendant's "substantial rights").
Viewed from that perspective, appellant's first two arguments are
meritless. The district court's performance in explaining the
charges and ensuring that defendant understood them easily passes
muster under Rule 11(c) and (d). The plea was voluntary.
The third prong of appellant's assignment of error
requires special mention, for the argument advanced indicates
some confusion over what proof is required in order to sustain a
conspiracy conviction. Appellant's thesis is that, while he
agreed to help steal the marijuana, he did not have an intent to
distribute it himself, and, thus, could not be guilty of (and
could not validly plead guilty to) the conspiracy charge.
This thesis does not receive a passing grade. A
specific intent to distribute drugs oneself is not required to
secure a conviction for participating in a drug-trafficking
conspiracy. This conclusion is neither new nor original. In
United States v. Rivera-Santiago, 872 F.2d 1073 (1st Cir.), cert.
5
denied, 492 U.S. 910 & 493 U.S. 832 (1989), we upheld a
conviction for conspiracy to distribute marijuana based on
evidence that the defendant had agreed to store a large quantity
of the drug in his house, even though no evidence had been
adduced that he intended to play a role in its distribution. See
id. at 1081. In the process, we explained that:
an individual could be found to be part of a
conspiracy to possess and distribute
[marijuana] even though he neither directly
participated in interstate trafficking nor
knew the precise extent of the enterprise.
The fact that he participated in one . . .
link of the distribution chain, knowing that
it extended beyond his individual role, was
sufficient.
Id. at 1079 (emphasis supplied).
Any confusion in this area of the law may arise from a
possible ambiguity in certain of our earlier decisions. In
Rivera-Santiago, for example, we stated, in the paragraph
immediately preceding the language quoted above, that "[i]n order
to prove that a defendant belonged to and participated in a
conspiracy, the government must prove two kinds of intent; intent
to agree and intent to commit the substantive offense." Id. This
"double intent" formulation neither began with Rivera-Santiago,
see, e.g., United States v. Drougas, 748 F.2d 8, 15 (1st Cir.
1984), nor ended there, see, e.g., United States v. Mena-Robles,
4 F.3d 1026, 1031 (1st Cir. 1993), cert. denied, 114 S. Ct. 1550
(1994); United States v. Nueva, 979 F.2d 880, 884 (1st Cir.
1992), cert. denied, 113 S. Ct. 1615 (1993). Insofar as we can
determine, the formulation made its First Circuit debut in United
6
States v. Flaherty, 668 F.2d 566 (1st Cir. 1981), where the panel
stated that "[t]wo types of intent must be proved: intent to
agree and intent to commit the substantive offense." Id. at 580.
For this proposition the panel cited United States v. United
States Gypsum Co., 438 U.S. 422 (1978). But Gypsum says
something slightly different: "[i]n a conspiracy, two different
types of intent are generally required the basic intent to
agree . . . and the more traditional intent to effectuate the
object of the conspiracy." (emphasis supplied). Id. at 444
n.20. Though slight, the difference is important. Its
significance comes into focus in the case before us.
Perhaps the best way to illustrate the difference is by
asking a question: does one who intentionally agrees to
undertake activities that facilitate commission of a substantive
offense, but who does not intend to commit the offense himself,
have the requisite intent to be convicted of conspiracy?
According to a literal reading of Flaherty a reading which we
are sure the Flaherty court never intended and which, to our
knowledge, has never been implemented in this circuit the
answer to the question would be in the negative. Under such a
reading, a defendant must have the "intent to commit the
substantive offense" in order to ground a conviction. But under
Gypsum, by contrast, the answer to the question is plainly in the
affirmative, for our hypothetical defendant "inten[ded] to
effectuate the object of the conspiracy."
Gypsum's formulation not only makes good sense, but it
7
is also good law. In practice, our cases have hewed to that
line. See, e.g., Rivera-Santiago, supra; United States v.
Moosey, 735 F.2d 633, 635-36 (1st Cir. 1984) (upholding
conviction for conspiracy even though defendant personally had
not intended to, and did not, participate in the underlying
substantive offense of interstate trafficking).
We conclude, therefore, that the "double intent"
language contained in Flaherty and its progeny, correctly read,
merely rehearses the Gypsum formulation, and requires that the
government prove an intent to agree and an intent to effectuate
the commission of the substantive offense. A defendant need not
have had the intent personally to commit the substantive crime.
Here, the record shows beyond hope of contradiction
that appellant, whether or not he meant personally to participate
in the distribution of the contraband, nonetheless knowingly
assisted in its asportation, with foreknowledge that the
conspiracy extended beyond the theft to the eventual disposal at
some later date of the purloined marijuana (totaling over 145
kilograms). He thus possessed the requisite mens rea.
That ends the matter. Though a district court has an
unflagging obligation to assure itself that a guilty plea is
grounded on an adequate factual foundation, see, e.g., United
States v. Ruiz-Del Valle, 8 F.3d 98, 102 (1st Cir. 1993), it need
not gratuitously explore points removed from the elements of the
offense. Because an adequate factual basis existed to undergird
appellant's plea, his assignment of error collapses.
8
III. THE CAREER OFFENDER CHALLENGE
We now reach the heart of the appeal. We choose to
present our analysis in four segments. First, we set the stage.
Second, we address the status of conspiracy convictions under the
career offender guideline. Next, we consider the propriety of
including state narcotics convictions as predicate offenses.
Finally, we confront appellant's constitutional challenge.
A. Setting the Stage.
A. Setting the Stage.
The career offender guideline provides that a defendant
is a career offender if:
(1) the defendant was at least eighteen
years old at the time of the instant offense,
(2) the instant offense of conviction is a
felony that is either a crime of violence or
a controlled substance offense, and (3) the
defendant has at least two prior felony
convictions of either a crime of violence or
a controlled substance offense.
U.S.S.G. 4B1.1 (Nov. 1993). An associated guideline defines a
"controlled substance offense" for all pertinent purposes as "an
offense under a federal or state law prohibiting the manufacture,
import, export, distribution, or dispensing of a controlled
substance . . . with intent to manufacture, import, export,
distribute, or dispense." U.S.S.G. 4B1.2(2). To elucidate this
definition, the Sentencing Commission devised Application Note 1.
The note instructs readers that the term "controlled substance
offense" includes "the offenses of aiding and abetting,
conspiring, and attempting to commit such offenses." U.S.S.G.
4B1.2, comment. (n.1).
When appellant appeared for sentencing, the district
9
court, relying on United States v. Fiore, 983 F.2d 1 (1st Cir.
1992), cert. denied, 113 S. Ct. 1830 (1993), invoked Application
Note 1 and determined that the instant offense of conviction
conspiracy to possess with intent to distribute over 100
kilograms of marijuana constituted a controlled substance
offense for purposes of U.S.S.G. 4B1.1. The conviction
therefore triggered consideration of the career offender regime.
This step spelled trouble for appellant. The
presentence investigation report reflected that he previously had
racked up eleven adult criminal convictions. The judge counted
two of them a 1980 state court conviction for selling a
controlled substance (PCP), and a 1985 state court conviction for
possession of cocaine with intent to distribute as comprising
the predicate offenses needed to bring the career offender
guideline to bear. Hence, the court imposed a much stiffer
sentence 25 years than the offense of conviction, taken in a
vacuum, otherwise would have generated.
B. Conspiracies As Covered Offenses
Appellant challenges the district court's ruling that
his conspiracy conviction qualifies as a controlled substance
offense.3 Because this challenge hinges on the legal effect of
3In this case the lower court ruled that the conspiracy
conviction constituted a triggering offense. We note, however,
that the relevant definitions are substantially identical, and,
therefore, answering the question of whether a conspiracy charge
can constitute a triggering offense for purposes of the career
offender guideline necessarily answers the analogous question of
whether a conspiracy conviction can constitute a predicate
10
the conviction, our review is plenary. See Fiore, 983 F.2d at 2;
see also United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.
1992) (holding that a de novo standard of review governs
interpretive questions under the sentencing guidelines).
Appellant launches this offensive by remarking the
obvious: conspiracy convictions are not mentioned in the body of
either the relevant guidelines, U.S.S.G. 4B1.1-4B1.2, or the
enabling legislation, 28 U.S.C. 994(h).4 He acknowledges that
Application Note 1, quoted supra Part III(A), purports to include
certain conspiracies as triggering and/or predicate offenses, but
limns two reasons why sentencing courts must boycott this
conclusion. First, he asserts that the Sentencing Commission's
offense for such purposes. See, e.g., United States v. Bell, 966
F.2d 703, 705 (1st Cir. 1992) (explaining that it would be a
"bizarre . . . anomaly" if the same crime were determined to be a
triggering offense, but not a predicate offense, under the career
offender guideline, or vice-versa); see also United States v.
Price, 990 F.2d 1367, 1369 (D.C. Cir. 1993) (stating that, in
regard to classification, the statutory definition of what
constitutes a triggering offense and what constitutes a predicate
offense "poses the same problem").
4In the statute, Congress directed the Commission, inter
alia, to "assure that the guidelines specify a sentence to a term
of imprisonment at or near the maximum term authorized" for an
adult defendant convicted of a felony that is either "(A) a crime
of violence; or (B) an offense described in section 401 of the
Controlled Substances Act (21 U.S.C. 841), sections 1002(a),
1005, and 1009 of the Controlled Substances Import and Export Act
(21 U.S.C. 952(a), 955, and 959), and section 1 of the Act of
September 15, 1980 (21 U.S.C. 955a)," so long as such defendant
"previously [has] been convicted of two or more felonies," each
of which is a crime of violence or controlled substance offense
(defined in the same way as triggering offenses are defined). 28
U.S.C. 944 (h). The Commission itself recognized the primacy
of the statute and wrote the career offender guideline in part to
reflect the statutory requirements. See U.S.S.G. 4B1.1,
comment. (backg'd.) (explaining that section 4B1.1 implements the
mandate of 28 U.S.C. 994(h)).
11
commentary is inconsistent with the guideline itself and should,
therefore, be disregarded. Second, he asserts that if, by reason
of the commentary or otherwise, the guideline is construed to
encompass conspiracies (particularly drug-trafficking
conspiracies), its promulgation exceeds the Sentencing
Commission's statutory authority. Neither assertion carries the
day.
1. Consistency with the Guideline. With respect to the
Sentencing Commission, the Court's instructions could scarcely be
more explicit:
Commentary which functions to interpret [a]
guideline or explain how it is to be applied,
controls, and if failure to follow, or a
misreading of, such commentary results in a
sentence select[ed] . . . from the wrong
guideline range, that sentence would
constitute an incorrect application of the
sentencing guidelines . . . .
Stinson v. United States, 113 S. Ct. 1913, 1917-18 (1993)
(citations and internal quotation marks omitted). To be sure,
commentary, though important, must not be confused with gospel.
Commentary is not binding in all instances. See Stinson, 113 S.
Ct. at 1918. In particular, commentary carries no weight when
the Commission's suggested interpretation of a guideline is
"arbitrary, unreasonable, inconsistent with the guideline's text,
or contrary to law." Fiore, 983 F.2d at 2.
An application note and a guideline are inconsistent
only when "following one will result in violating the dictates of
the other." Stinson, 113 S. Ct. at 1918. That is not the
situation here. Because the application note with which we are
12
concerned neither excludes any offenses expressly enumerated in
the guideline, nor calls for the inclusion of any offenses that
the guideline expressly excludes, there is no inconsistency.
By like token, the application note, when measured
against the text of the career offender guideline, does not
appear arbitrary or unreasonable. In real-world terms, drug-
trafficking conspiracies cannot easily be separated from the
mine-run of serious narcotics offenses and, therefore, the
Sentencing Commission's inclusion of conspiracy convictions is
most accurately viewed as interstitial. It is a logical step
both from a lay person's coign of vantage and from the standpoint
of the Commission's (and Congress's) oft-demonstrated
preoccupation with punishing drug traffickers sternly. It in no
way detracts from the dictates of the guideline itself. In
short, the application note comports sufficiently with the
letter, spirit, and aim of the guideline to bring it within the
broad sphere of the Sentencing Commission's interpretive
discretion. Cf., e.g., id. at 1919 (holding that an agency's
interpretation of its own regulations must be given controlling
weight if it does not violate the Constitution or a federal
statute); Robertson v. Methow Valley Citizens Council, 490 U.S.
332, 359 (1989) (similar).
2. Consistency with Section 994(h). As we observed at
the outset, the question of whether Application Note 1
contravenes 28 U.S.C. 994(h) has divided the courts of appeals.
Three circuits hold that Application Note 1 conflicts with the
13
statute. See United States v. Mendoza-Figueroa, F.3d ,
(8th Cir. 1994) [No. 93-2867 slip op. at ]; United States v.
Bellazerius, 24 F.3d 698, 702 (5th Cir. 1994); United States v.
Price, 990 F.2d 1367, 1369 (D.C. Cir. 1993). These courts
stress that a "conspiracy to commit a crime involves quite
different elements from whatever substantive crime the defendants
conspire to commit" and thus, cannot be said to be one of the
offenses "described in" the statutes that section 994(h)
enumerates. Price, 990 F.2d at 1369. Accordingly, these courts
hold that the Commission's attempt to introduce crimes not
expressly mentioned in section 994(h) into the career offender
calculus is contrary to law. See, e.g., id. In a related vein,
these courts also hold that since the Commission stated in a
"background" comment that it drafted U.S.S.G. 4B1.1 to implement
the "mandate" of section 994(h), and did not provide any other
legal authority in support of its enactment, the inclusion of
conspiracies in the career offender guideline cannot be regarded
as an exercise of the Commission's discretionary powers under 28
U.S.C. 994(a). See, e.g., Bellazerius, 24 F.3d at 702.
Several other circuits have adopted a diametrically
opposite view. These courts hold that "[s]ection 994(h) provides
the minimum obligation of the Commission and does not prohibit
the inclusion of additional offenses that qualify for such
treatment." United States v. Damerville, 27 F.3d 254, 257 (7th
Cir. 1994); accord United States v. Hightower, 25 F.3d 182, 187
(3d Cir. 1994); United States v. Allen, 24 F.3d 1180, 1187 (10th
14
Cir. 1994); United States v. Heim, 15 F.3d 830, 832 (9th Cir.
1994); cf. United States v. Beasley, 12 F.3d 280, 283 (1st Cir.
1993). Rather than viewing section 994(h) as a ceiling, limiting
the Sentencing Commission's power, these courts, constituting a
majority of the circuits that have spoken to the issue, see the
statute as a floor, describing the irreducible minimum that the
Commission must do by way of a career offender guideline, but
without in any way inhibiting the Commission, in the exercise of
its lawfully delegated powers, from including additional offenses
within the career offender rubric. See, e.g., Damerville, 27
F.3d at 257.
We find the majority view more persuasive. In this
regard, we think it is significant that this view is more
compatible with discernible congressional intent. The
legislative history makes plain that section 994(h) is "not
necessarily intended to be an exhaustive list of types of cases
in which the guidelines should specify a substantial term of
imprisonment, nor of types of cases in which terms at or close to
authorized maxima should be specified." S. Rep. No. 98-225, 98th
Cong., 1st Sess. 307 (1983), reprinted in 1984 U.S.C.C.A.N. 3182,
3359.5
5This legislative history also casts light on the
Commission's use of the term "mandate," referring to the
"mandate" of section 994(h), in the background commentary to the
career offender guideline. See U.S.S.G. 4B1.1, comment.
(backg'd.). We think it shows rather clearly that Congress
wanted to guide the Commission in a general direction, not merely
to instruct it to make a one-time mechanical adjustment. In our
opinion, the overall context suggests that Congress's "mandate"
directed the Commission to accord career offender treatment to
15
To cinch matters, we believe that Fiore a case in
which we held that a conviction for a conspiracy to commit a
crime of violence must be treated for career offender purposes
the same as a conviction for the crime of violence itself, 983
F.2d at 3 aligns us doctrinally with the majority view.
And because we continue to believe that Fiore was correctly
decided, we do not resist its pull.
3. Validity of the Definitions. Having concluded that
28 U.S.C. 994(h) neither comprises a ceiling nor an exclusive
compendium of the crimes that are eligible to serve as triggering
or predicate offenses, we must next determine whether the
Commission has lawful power to write the definition of "crime of
violence" and "controlled substance offense" to include certain
conspiracy convictions. We believe the Commission's definitions
are both valid and applicable to Piper's case.
On this issue, our work is largely behind us, for we
have addressed the question on a number of previous occasions.
In determining what crimes constitute covered offenses, we use
the formal categorical approach introduced by the Supreme Court
in Taylor v. United States, 495 U.S. 575 (1990). See Fiore, 983
F.2d at 3; accord United States v. Dyer, 9 F.3d 1, 2 (1st Cir.
1993) (per curiam). Under such an approach, we look to the
statutory definition of the offense in question, as opposed to
whatever drug-related crimes the Commission believed to be on a
par with the offenses enumerated in section 994(h). And we think
that the Commission used the word "mandate" to refer to this
broader policy.
16
the particular facts underlying the conviction. See Fiore, 983
F.2d at 3; see also United States v. Winter, 22 F.3d 15, 18 (1st
Cir. 1994).
To determine the status of a conspiracy conviction vis-
a-vis the career offender rubric, the key question is "conspiracy
to do what?" Fiore, 983 F.2d at 3. If the object of the
conspiracy is to commit a crime of violence or a controlled
substance offense, as those terms are defined for purposes of
U.S.S.G. 4B1.1, then the career offender provision is
applicable. Here, answering the question brings the offense of
conviction within the ambit of the career offender guideline, as
appellant acknowledges that he pleaded guilty to a charge that he
participated in a drug-trafficking conspiracy.
Appellant tries mightily to avoid this conclusion. He
claims that Fiore should not be given suzerainty here. In this
connection, appellant makes two points: (1) Fiore involved a
conspiracy to commit a crime of violence, rather than a
conspiracy to commit a controlled substance offense; and (2)
Fiore involved a predicate offense rather than a triggering
offense. To be sure, these distinctions exist - but they are
distinctions that make no legally relevant difference.
Appellant's first point simply will not wash. The
rationale on which the Taylor Court relied in choosing a formal
categorical approach is equally applicable to controlled
substance offenses. For one thing, the approach mirrors
Congress's approach. See Taylor, 495 U.S. at 575. For another
17
thing, the same practical difficulties that militate against the
use of a fact-specific analytic method are present in both
situations. Cf. Beasley, 12 F.3d at 284 (explaining that to
distinguish controlled substance predicate offenses based on the
jurisdiction of conviction would "produce a crazy quilt of
punishment results").
We need not dwell on appellant's second point. As we
already have noted, see supra note 3, an identical analysis
applies whether the offense in question is a triggering or
predicate offense. Consequently, the same result must obtain.
Fiore controls.
4. Rulemaking. Appellant mounts one last challenge to
the inclusion of conspiracy convictions in the career offender
calculus. This challenge derives from the notion that the
promulgation of Application Note 1 constituted improper
rulemaking in violation of 28 U.S.C. 994(x). We reject this
initiative. A fair reading of the statute indicates that it
requires no more than that the promulgation of the guidelines
themselves shall be subject to the rulemaking procedures detailed
in the Administrative Procedure Act (APA). See 28 U.S.C.
994(x) (stating that the relevant APA provisions, such as 5
U.S.C. 553, "relating to the publication in the Federal
Register and public hearing procedure, shall apply to the
promulgation of Guidelines pursuant to this section") (emphasis
supplied).
In any event, Application Note 1 is nothing more than
18
an interpretive aid. As such, it is "akin to an agency's
interpretation of its own legislative rules." Stinson, 113 S.
Ct. at 1919. It is not necessary that such interpretations be
promulgated in accordance with the formal requirements of the
APA. See 5 U.S.C. 553 (excluding from rulemaking procedures
"interpretative rules, general statements of policy, or rules of
agency organization, procedure, or practice").
C. Prior State Convictions as Predicate Offenses.
Taking a slightly different tack, appellant asseverates
that the enumeration of specific statutes within section 994(h)
precludes incorporation of state court convictions as predicate
offenses under the career offender provision; and that,
therefore, the court below committed reversible error in counting
his convictions for state drug-trafficking crimes. We do not
agree.
The short of it is that this asseveration has been
advanced and rebuffed in many other cases. See, e.g.,
Beasley, 12 F.3d at 284 (holding that to exclude state drug-
trafficking convictions would thwart Congress's intent, do
violence to the language of section 994(h), and create an
unjustified anomaly); United States v. Rivera, 996 F.2d 993, 996
(9th Cir. 1993) (holding the Sentencing Commission's inclusion of
state convictions as predicate offenses to be both permissible
and reasonable); United States v. Whyte, 892 F.2d 1170, 1174 (3d
Cir. 1989) (stating that, under section 994(h), predicate drug
offenses need only involve "conduct that could have been charged
19
federally"), cert. denied, 494 U.S. 1070 (1990); see also Dyer, 9
F.3d at 1 (explicitly endorsing Whyte rationale).
Displayed against the monochromatic backdrop of this
massed authority, appellant's challenge fades.6
D. Constitutionality of the Sentence.
Appellant's last-ditch argument is that the mere
application of the career offender guideline in this case
infracts his constitutional rights. Specifically, he contends
that the Sentencing Commission, in promulgating the guideline,
violated both the Due Process Clause (by treating all career
offenders alike, without regard to their individual
circumstances) and the Cruel and Unusual Punishment Clause (by
prescribing a sentence which does not depend on the gravity of
the conduct underlying the offense of conviction).7
This rumination deserves short shrift. Appellant's
constitutional challenge leans almost exclusively on United
States v. Spencer, 817 F. Supp. 176 (D.D.C. 1993). However,
6On appeal, Piper contends for the first time that his
antecedent state convictions are "not fairly or rationally linked
to the [enumerated] federal crimes." We eschew consideration of
this late-blooming argument. It is settled that, in respect to
criminal sentencing, as in other contexts, arguments not squarely
presented to the sentencing court cannot debut as of right in an
appellate venue. See United States v. Sepulveda, 15 F.3d 1161,
1202 (1st Cir. 1993), cert. denied, 114 S. Ct. 2714 (1994);
United States v. Ocasio-Rivera, 991 F.2d 1, 3 (1st Cir. 1993);
United States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1993).
7We note that appellant also alludes in passing to the
possibility that the career offender guideline abridges the Equal
Protection Clause. Because this allusion is not accompanied by
any developed argumentation, we deem it waived. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494
U.S. 1082 (1990).
20
Spencer has since been reversed, see United States v. Spencer, 25
F.3d 1105 (D.C. Cir. 1994), and is, therefore, a cardboard
crutch. Moreover, the reversal seems richly deserved. After
all, the prevailing view is that the career offender guideline
does not violate the Due Process Clause. See, e.g., United
States v. Davis, 15 F.3d 526, 533 n.5 (6th Cir. 1994); United
States v. John, 936 F.2d 764, 766 n.2 (3d Cir. 1991); United
States v. Jones, 907 F.2d 929, 930 (9th Cir. 1990); United States
v. Green, 902 F.2d 1311, 1313 (8th Cir.), cert. denied, 498 U.S.
943 (1990). We share this view.
To the extent that appellant's claim of cruel and
unusual punishment rests on the district court's reasoning in
Spencer, it is similarly undone. Perhaps more importantly,
appellant fails to indicate any factor that meaningfully
distinguishes his sentence as a career offender from other
sentences found by other courts to be in complete conformity with
the strictures of the Eighth Amendment. See, e.g., Rummel v.
Estelle, 445 U.S. 263 (1980); Davis, 15 F.3d at 533 n.5; John,
936 F.2d at 766 n.2. Thus, appellant's constitutional attack
misses the mark.
IV. CONCLUSION
We need go no further. Having examined the record and
the applicable law with care, we find appellant's guilty plea to
have been properly received and his sentence to have been imposed
in accordance with law. The career offender regime, as crafted
by Congress and the Sentencing Commission, is harsh, but the
21
courts are obliged to enforce it according to its tenor. The
district court did so here.
Affirmed.
22