Beruflich Dokumente
Kultur Dokumente
94-1197
convictions qualify as
purposes
of
the
appeals.
the question of
revisit,
whether conspiracy
career
sentencing guidelines.1
offender
provisions
of
On reflection,
we adhere
to
the
for
federal
the courts of
the majority
view and
offender status.
Because
I.
I.
BACKGROUND
BACKGROUND
On September
2, 1993, in proceedings
pursuant to Fed.
to
to a two-count information
possess
with
intent
to
distribute
over
100
841(a)(1), 841(b)(1)(B),
924(c).
terming
____________________
plea
and
the
application of
the
career
offender
guideline.
II.
II.
it requires us to
specific
vexing
point,
we
first
Before reaching
dispatch
some
necessary
preliminaries.
Although
Piper
now contends
that the
district court
Consequently, he can
prevail on this
proceeding itself.
not seek to
Cir. 1991).
Mateo,
_____
v. Parra-Ibanez,
____________
Appellant's attempts to
assigned error,2
trafficking
count.
each of
He
asserts
arguments in support of
which centers
that
around the
the district
court
drug-
(1)
____________________
that his
Crim. P.
plea was
voluntary, in
derogation of
Fed. R.
(explaining that
calculated to
the
of Rule 11
. .
. are
intelligent character of
Cir. 1991)
(identifying
core
Rule
11 concerns:
absence
of
to
ensure that
information.
articulated
concerns
judge's
is
understood the
responsiveness
of
great
to
importance
To
meticulous
gist
of the
defendant's
in
Rule
11
proceedings.
999
(1st
Cir.
appropriately
hearing),
1988)
to
(explaining need
defendant's
questions
the core
suitably detailed
clarification of certain
replete with
for
court
at
requirements of Rule
points.
And,
respond
change-of-plea
1015 (1989).
explanations when
to
11, but
appellant sought
also
is
opposed
Silverio,
________
op.
at
lily.
An
to pettifoggery.
___ F.3d ___, ___
15] (emphasizing
See
___
United States
______________
that there
practical wisdom
is
v.
Medina_______
no "formula
of 'magic
Fed. R. Crim.
P. 11(h) (explaining
that,
to
warrant
proceeding
must
vacation,
irregularities
affect the
defendant's
in
plea-taking
"substantial rights").
The district
court's performance in
explaining the
third prong
of
special mention,
for the
assignment of
argument advanced
conviction.
Appellant's
thesis is
and, thus,
could not be
indicates
to sustain a
that, while
error
he
an intent to
guilty of
(and
does
not
intent to distribute
a
conviction
conspiracy.
This
for
receive a
passing
drugs oneself is
participating in
conclusion is
grade.
not required to
drug-trafficking
original.
In
denied,
492
U.S.
910
&
493
U.S.
832
(1989),
we
upheld a
______
conviction
evidence
of
for
conspiracy
to
distribute
marijuana
based
on
the drug
in
his house,
even
though no
evidence
had been
See
___
in
for
certain of
example,
our
we
earlier decisions.
stated,
in
the
In
paragraph
prove
that a
defendant belonged
to
and participated
in a
see, e.g.,
___ ____
United States
_____________
Id. This
___
v. Drougas, 748
_______
F.2d 8, 15
(1st Cir.
4 F.3d
(1994);
1992),
1026, 1031 (1st Cir. 1993), cert. denied, 114 S. Ct. 1550
_____ ______
United States v.
______________
Nueva, 979
_____
F.2d
880, 884
(1993).
(1st Cir.
Insofar as we can
States v. Flaherty, 668 F.2d 566 (1st Cir. 1981), where the panel
______
________
stated that "[t]wo
types of
intent must be
proved:
intent
this proposition
the panel
438
U.S.
of intent
. . and
are generally
the more
(1978).
But
required
Gypsum
______
the basic
says
intent to
n.20.
difference
slight,
v. United
______
Id. at 580.
___
to
the
is
Id.
___
at 444
important.
Its
question:
does
undertake activities
the
are
knowledge,
Flaherty court
________
has
answer to
reading,
intent
to
to a literal reading of
sure the
never been
substantive
defendant
must
be
agrees
to
offense himself,
convicted
Flaherty
________
never intended
implemented
intentionally
requisite
According
who
one
of
a reading which we
and which,
in this
the
"intent
to our
circuit
in the negative.
have
conspiracy?
the
Under such a
to
commit
the
But under
for
our
hypothetical
defendant
"inten[ded]
to
is
also good
law.
In
practice, our
cases have
hewed to that
line.
See,
___
e.g.,
____
Moosey,
______
735
F.2d
conviction
Rivera-Santiago, supra;
_______________ _____
633,
635-36
not intended
to,
and did
(1st
United States
______________
Cir.
1984)
though defendant
not,
v.
(upholding
personally had
participate in
the
underlying
conclude,
language contained
merely rehearses
that
therefore,
the
"double
intent"
that the
to effectuate
record shows
beyond
hope of
contradiction
the distribution
assisted
in
its
of
the
contraband, nonetheless
asportation,
with
foreknowledge
knowingly
that
the
conspiracy
some later
date of
kilograms).
the purloined
grounded
over 145
marijuana (totaling
obligation to
on an
assure
adequate factual
a guilty
foundation, see,
___
has an
plea is
e.g., United
____ ______
States v. Ruiz-Del Valle, 8 F.3d 98, 102 (1st Cir. 1993), it need
______
______________
not gratuitously
offense.
III.
III.
the heart
of the appeal.
First,
We choose
to
offender guideline.
including
state
narcotics
Next, we consider
convictions as
the propriety of
predicate
offenses.
4B1.1 (Nov.
1993).
An associated
guideline defines a
export,
substance
. .
distribution,
.
with intent
distribute, or dispense."
or dispensing
to
of
controlled
manufacture, import,
U.S.S.G.
4B1.2(2).
export,
To elucidate this
instructs readers
offense"
includes
conspiring, and
"the
attempting to
of
"controlled substance
aiding
and
abetting,
U.S.S.G.
appellant appeared
for sentencing,
the district
Cir.
Note
conspiracy
kilograms
offense
to
of
for
possess
with
marijuana
purposes
intent
constituted
of
U.S.S.G.
to
of conviction
distribute
a
over
100
controlled substance
4B1.1.
The
conviction
This
step
spelled
trouble
for
appellant.
The
of
them
1980
state court
conviction
for
selling a
predicate
guideline
sentence
to
offenses
bear.
needed
to bring
Hence, the
25 years
to distribute
court
the
imposed
as
comprising
career
a much
offender
stiffer
Appellant
his
conspiracy conviction
offense.3
Because this
qualifies as
controlled substance
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
(holding
that
de
__
novo
____
standard
of
governs
launches
this
offensive
by
remarking the
either the
relevant guidelines,
enabling legislation,
28 U.S.C.
U.S.S.G.
4B1.1-4B1.2, or
994(h).4
the
He acknowledges that
two
reasons
conclusion.
why
sentencing
courts
must
boycott
this
____________________
offense for such purposes.
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
commentary or otherwise,
encompass
conspiracies
conspiracies),
Commission's
its
the guideline
(particularly
promulgation
statutory authority.
is construed
to
drug-trafficking
exceeds
the
Sentencing
day.
1.
sentencing guidelines . . . .
Stinson
_______
v.
United States,
______________
(citations and
113 S.
Ct.
commentary, though
at 1918.
In
the
Commission's
1917-18
omitted).
1913,
be sure,
in all instances.
To
(1993)
interpretation
no weight when
of a
guideline
is
application note
and a guideline
are inconsistent
Stinson,
_______
situation here.
113 S.
Because
Ct. at
1918.
That
is not
the
we are
12
concerned neither
enumerated in
offenses that
text
token,
the application
of the
career
note,
when
offender guideline,
measured
does
not
appear
arbitrary or
trafficking
mine-run
unreasonable.
conspiracies
of
Sentencing
serious
cannot
narcotics
In real-world
easily be
offenses
Commission's inclusion
separated
and,
from the
therefore,
of conspiracy
as interstitial.
terms, drug-
the
convictions is
It is
a logical
step
both from a lay person's coign of vantage and from the standpoint
of
the
Commission's
(and
detracts
short,
the
from the
Congress's)
dictates of
application
oft-demonstrated
note
the
comports
guideline itself.
sufficiently
broad
the
sphere
discretion.
of
Cf.,
___
interpretation of
weight
if
statute);
Sentencing
e.g., id.
____ ___
Commission's
at 1919 (holding
it does
not violate
the
It in no
with
In
the
it within the
interpretive
that an
agency's
be given controlling
Constitution or
a federal
490 U.S.
outset,
question
contravenes 28 U.S.C.
Three
of
whether
As we observed at
Application
Note
Application Note 1
13
statute.
(8th
F.2d 1367,
that
1369 (D.C.
"conspiracy
Cir.
1993).
to commit
These
crime
courts
involves quite
"described
enumerates.
hold
that
in"
the
statutes
Commission's
expressly mentioned
courts also
that
since the
legal authority in
support of
994(a).
the
994(h)
crimes
its enactment,
not
career offender
In a related vein,
Commission stated
section
introduce
hold that
be one of
attempt to
in section
be said to
in a
4B1.1 to implement
of
Several other
circuits
have adopted
diametrically
opposite view.
inclusion
treatment."
of
of the Commission
additional
offenses that
qualify
prohibit
for
such
257 (7th
182, 187
(3d
United States
_____________
Cir.
v. Heim, 15
____
(9th Cir.
1994);
1993).
the
majority of the
statute as a floor,
Commission must do
without
of a career
offender guideline,
the
but
the career
offender rubric.
See, e.g.,
___ ____
Damerville, 27
__________
F.3d at 257.
We find
regard,
we
think
it is
compatible
with
discernible
legislative
history
in
which the
significant
that
this
congressional
makes plain
necessarily intended to be
more persuasive.
that
section
In
this
view is
more
intent.
994(h) is
guidelines should
specify
The
"not
of cases
a substantial
term of
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
crime of
violence must be
the
a conviction
And
aligns
because we
continue
conspiracy to commit
same as a conviction
F.2d at
for a
offender purposes
us doctrinally with
to believe
that
correctly
an exclusive
predicate
Commission
offenses,
we
must
next
determine
whether
the
substance offense" to
include certain
In determining
the formal
in Taylor
______
what crimes
is largely behind
on a number
(per
statutory
of previous occasions.
curiam).
Under such
definition of the
we use
us, for we
F.3d 1, 2 (1st
an approach,
offense in question,
we look
Cir.
to the
as opposed to
____________________
used the
word "mandate"
to refer
to this
16
the particular
F.2d
Cir. 1994).
what?"
conspiracy
is
Fiore,
_____
983 F.2d
to commit
substance offense,
at 3.
a crime
as those
then
If
of
the
violence or
4B1.1,
career
offender
applicable.
the
a controlled
for purposes
U.S.S.G.
object of
provision
of
is
the offense of
two points:
(1)
He
In this
Fiore involved
_____
conspiracy
to
conspiracy
Fiore
_____
to commit
involved
offense.
commit
To
a
a
crime
of
violence,
controlled substance
a predicate
offense
be sure, these
rather
rather
than
offense; and
than a
distinctions exist -
(2)
triggering
but they
are
first point
simply
will not
wash.
categorical
is
substance
approach
offenses.
Congress's approach.
equally
For
See
___
one
applicable
thing,
the
to
a formal
controlled
approach
The
mirrors
For another
17
of
a fact-specific
situations.
Cf.
___
Beasley, 12
_______
method
F.3d at
are present
in
284 (explaining
that to
of
conviction
would
"produce a
crazy
both
on the
quilt
of
punishment results").
We need not dwell
As we
already have
applies
noted,
whether
see supra
___ _____
the offense
predicate offense.
note
in
3, an
identical
question
Consequently,
is a
analysis
triggering
or
must obtain.
Fiore controls.
_____
4.
Rulemaking.
__________
the inclusion
calculus.
of conspiracy
This
convictions in the
challenge
derives from
promulgation
of
rulemaking in
violation of 28 U.S.C.
initiative.
requires no
Application
fair reading
more than
Note
of the
that the
the
career offender
notion
that the
constituted
994(x).
We
improper
reject this
statute indicates
promulgation of
that it
the guidelines
the
994(x)
Administrative Procedure
(stating that
U.S.C.
Register
the
553, "relating
and
public
relevant APA
to
hearing
promulgation of Guidelines
__________________________
Act (APA).
the
provisions,
publication
procedure,
See 28
___
in
U.S.C.
such as
the
Federal
(emphasis
more than
supplied).
In any event,
18
an
interpretive
aid.
interpretation of
Ct.
at 1919.
promulgated
APA.
As
such,
it is
It is not necessary
in accordance
See 5 U.S.C.
___
"akin
rules."
to
an agency's
Stinson,
_______
113 S.
with the
formal requirements
553 (excluding
of the
of policy, or rules of
precludes
offenses
incorporation of state
under
the
career
offender
provision;
and
that,
drug-trafficking crimes.
We
do not
agree.
The
short
advanced
and
Beasley,
_______
12 F.3d
of it
rebuffed
at 284
trafficking
convictions
violence
the
to
language
is that
in
this asseveration
many
other cases.
has been
See,
___
e.g.,
____
(holding that
to exclude
state drug-
would
Congress's
intent,
do
create
an
thwart
of section
994(h),
and
993, 996
_____________
______
as predicate
offenses to be
both permissible
Cir. 1989)
offenses
(stating that,
predicate drug
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
Appellant's
application
infracts his
that the
the
career
argument
offender
constitutional rights.
Sentencing Commission,
violated both
offenders
of
last-ditch
the Due
alike,
Process
without
is
guideline
the
mere
in
this
case
Specifically,
in promulgating
Clause (by
regard
that
to
he contends
the guideline,
treating all
their
career
individual
circumstances) and
prescribing
the Cruel
not depend on
Clause (by
the gravity of
rumination deserves
challenge
v. Spencer,
_______
817 F.
leans
short
almost
Supp. 176
shrift.
exclusively
(D.D.C. 1993).
Appellant's
on
United
______
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).
_____________
_____
1105
crutch.
(D.C. Cir.
and
1994),
not
seems richly
view is that
violate the
is, therefore,
Davis, 15 F.3d
_____
States v.
______
John, 936
____
deserved.
Clause.
F.2d 764,
cardboard
Due Process
States v.
______
See,
___
guideline
e.g., United
____ ______
(6th Cir.
After
1994); United
______
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,
_____
_____ ______
943 (1990).
To
unusual
Spencer,
_______
appellant
498 U.S.
the
extent that
punishment rests
it
on the
is similarly
fails
distinguishes
his
to
appellant's
sentence
and
reasoning in
Perhaps more
importantly,
any
as
of cruel
district court's
undone.
indicate
claim
factor
a career
that
meaningfully
offender
from
other
the Eighth
Amendment.
Estelle, 445
_______
936
766 n.2.
F.2d at
CONCLUSION
CONCLUSION
See,
___
15 F.3d at
Thus, appellant's
e.g., Rummel
____ ______
v.
constitutional attack
We
the
need go no further.
have been properly received and his sentence to have been imposed
in accordance with law.
by
Congress and
the Sentencing
Commission, is
as crafted
harsh,
but the
21
courts
are obliged to
enforce it according
Affirmed.
________
to its tenor.
The
22