Title United States v. Williams
Date 1999
By Alito
Subject Criminal Law
Contents
Page 1
LEXSEE 176 F3D 714
UNITED STATES OF AMERICA v. ABDUL WILLIAMS, Appellant
No. 97-5465
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
176 F.3d 714; 1999 U.S. App. LEXIS 9356
April 6, 1999, Argued
May 17, 1999, Filed
SUBSEQUENT HISTORY: **1 As Amended June
22, 1999.
PRIOR HISTORY: ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. (Dist. Ct. No. 96-cr--450). District Judge: The Honorable Dickinson R. Debevoise.
DISPOSITION: Affirmed.
LexisNexis(R) Headnotes
COUNSEL: Tonianne J. Bongiovanni, Chester M. Keller
(argued), Office of Federal Public Defender, Newark, NJ, Attorney for Appellant.
George S. Leone (argued), Office of United States
Attorney, Newark, NJ, Attorney for Appellee.
JUDGES: Before: SLOVITER and ALITO, Circuit
Judges, and ALARCON, Senior Circuit Judge *.
* The Honorable Arthur L. Alarcon, United States Senior Circuit Judge for the Ninth Circuit, sitting by designation.
OPINIONBY: ALITO
OPINION:
*715 OPINION OF THE COURT
ALITO, Circuit Judge:
Abdul Williams appeals his conviction and sentence in a criminal case. He argues that the District Court er- roneously sentenced him as a career offender under the Sentencing Guidelines. For the reasons discussed below, we affirm Williams's conviction and sentence.
I.
The facts in this case are relatively simple. Williams
was arrested and indicted for distributing heroin and pur- chasing heroin with intent to distribute, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He subsequently entered **2 into a plea agreement in which he agreed to plead guilty to a two-count Information charging that he knowingly and intentionally used a telephone to commit, cause, and facilitate the distribution of heroin in violation of 21 U.S.C. § 843(b). Williams pleaded guilty to both counts.
At a sentencing hearing, the government asked the District Court to sentence Williams as a career offender pursuant to § 4B1.1 of the United States Sentencing Guidelines ("U.S.S.G."). n1 In making this request, the government asserted (1) that Williams was at least 18 years old when he committed the instant offense, (2) that the offense was a "controlled substance offense," and (3) that Williams had received at least two prior felony con- victions for "controlled substance offenses."
n1 Except where indicated otherwise, all refer- ences are to the Sentencing Guidelines in effect on July 17, 1997--the day Williams was sentenced.
Williams challenged only the second of these asser- tions, arguing that his conviction under § 843(b) did
**3 not qualify as a "controlled substance offense" for purposes of determining career offender status under U.S.S.G. § 4B1.1. The District Court rejected this argu- ment, concluding that Williams had committed a "con- trolled substance offense" and was therefore a career of- fender for purposes of U.S.S.G. § 4B1.1. Accordingly, the District Court sentenced him to a 92 month term of imprisonment.
Williams appealed the District Court's decision to sen- tence him as a career offender. Because this case requires us to resolve a question of law, our review is plenary. United States v. Sabarese, 71 F.3d 94, 95 n.1 (3d Cir.
1996).
176 F.3d 714, *715; 1999 U.S. App. LEXIS 9356, **3
Page 2
II.
Under the Sentencing Guidelines, a defendant can be sentenced as a career offender if
(1) the defendant was at least eighteen years old at the time of the instant *716 of- fense, (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 con- victions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1. Williams does not dispute that he was at least 18 years old at the time of the instant offense; nor does **4 he deny having received at least two prior felony convictions for controlled substance offenses. See Br. for Appellant at 11 ("It is undisputed that the first and third prongs are met."). Accordingly, the only question before us is whether Williams's 21 U.S.C. § 843(b) con- viction can be considered a "controlled substance offense" for purposes of U.S.S.G. § 4B1.1.
Williams raises two arguments in support of his con- tention that it cannot. First, he argues that "the plain lan- guage of $(U.S.S.G. § 4B1.2 and its commentary demon- strate that . . . a conviction under § 843(b) is not" a
"controlled substance offense" for purposes of determin- ing career offender status. Br. for Appellant at 9. Second, he argues that the Sentencing Commission's definition of "controlled substance offense" is ambiguous and must therefore be construed in his favor. For the reasons dis- cussed below, we disagree.
A. The Guidelines define a "controlled substance of- fense" as "an offense under a federal or state law prohibit- ing the manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the posses- sion of a controlled substance . . . with intent to manu- facture, **5 import, export, distribute, or dispense." U.S.S.G. § 4B1.2(2) (emphasis added). Thus, a crime con- stitutes a "controlled substance offense" if the law creating it prohibits at least one of the activities enumerated in §
4B1.2(2). n2 Id.
n2 Because inchoate drug crimes are "offenses under a . . . 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," they must be con- sidered "controlled substance offenses." U.S.S.G.
§ 4B1.2 Commentary, Application Note 1 ("The term . . . 'controlled substance offense' includes
aiding and abetting, conspiring, and attempting to commit such offenses."). Id.
Therefore, we must determine whether § 843(b) pro- hibits at least one of the activities enumerated in §
4B1.2(2). Section 843(b) provides that
It shall be unlawful for any person knowingly or intentionally to use any communication
**6 facility in committing or in causing or facilitating the commission of any acts con- stituting a felony under any provision of this
control and enforcement subchapter or the import and export subchapter . . . of this
drug abuse and prevention chapter.
21 U.S.C. § 843(b). Many of the provisions refer- enced in § 843(b) prohibit "the manufacture, import, ex- port, distribution, or dispensing of a controlled substance
. . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dis- pense." U.S.S.G. § 4B1.2(2). See e.g., 21 U.S.C. § 841(a)
(prohibiting the manufacture, distribution, and dispensing of controlled substances, and possession of controlled substances with intent to distribute); 21 U.S.C. § 952
(prohibiting the importation of controlled substances); 21
U.S.C. § 953 (prohibiting the export of controlled sub- stances). Consequently, many of the offenses that can give rise to a § 843(b) conviction involve "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." **7 U.S.S.G. § 4B1.2(2). See e.g., 21 U.S.C.
§ 841(b) (prescribing penalties for the manufacture, dis- tribution, and dispensing of controlled substances, and for possession of controlled substances with intent to dis- tribute); 21 U.S.C. § 960 (prescribing penalties for the unlawful import and export *717 of controlled sub- stances); see also United States v. Johnstone, 856 F.2d
539, 543 (3d Cir. 1988) ("The occurrence of an under- lying drug felony is a fact necessary to finding a violation of § 843(b)."). Where such an offense provides the basis for a particular § 843(b) conviction, that conviction must be considered "an offense under a . . . law prohibiting the manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the possession of a con- trolled substance . . . with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 4B1.2(2).
Stated differently, where a particular § 843(b) convic- tion establishes that the defendant "committed," "caused," or "facilitated" one of the acts enumerated in § 4B1.2(2), that conviction qualifies as a "controlled substance of- fense" for purposes of determining career offender status.
176 F.3d 714, *717; 1999 U.S. App. LEXIS 9356, **7
Page 3
n3 The **8 three Courts of Appeals that have con- fronted this issue have reached similar conclusions. n4
See United States v. Mueller, 112 F.3d 277, 280-83 (7th Cir. 1997) ("By its plain terms, the underlying elements of 21 U.S.C. § 843(b) constitute a 'controlled substance offense.' "); United States v. Walton, 56 F.3d 551, 555-
56 (4th Cir. 1995) ("The distribution of cocaine is clearly a 'controlled substance offense' . . . ."); United States v. Vea-Gonzales, 999 F.2d 1326, 1329 (9th Cir. 1992)
("Because section 843(b) effectively prohibits the same conduct as is prohibited by 'controlled substance offenses,' the statute is a controlled substance offense for purposes of the career offender guideline."); cf. United States v. Mankins, 135 F.3d 946, 949 (5th Cir. 1998) (concluding that § 843(b) is a "felony drug offense" under 21 U.S.C.
§ 841(b)(1)(B)(viii) because it "prohibits drug distribu- tion").
viction under Florida's solicitation statute did not qualify as a "controlled substance offense"); United States v. Baker, 16 F.3d 854 (8th Cir. 1994) (con- cluding that a conviction under 21 U.S.C. § 856 was not a "controlled substance offense" where the underlying offense was mere possession of a con- trolled substance); United States v. Wagner, 994
F.2d 1467 (10th Cir. 1993) (concluding that posses- sion of a precursor chemical with intent to manu- facture a controlled substance was not a "controlled substance offense"); United States v. Liranzo, 944
F.2d 73 (2d Cir. 1991) (concluding that a convic- tion under New York's criminal facilitation statute did not qualify as a "controlled substance offense"). Because these cases do not pertain to § 843(b) con- victions, they do not advance Williams's argument.
**10
**9
n3 We avoid concluding that all § 843(b) con- victions are "controlled substance offenses" be- cause a defendant could be convicted under §
843(b) without engaging in any of the activities enumerated in § 4B1.2(2). For example, in cer- tain circumstances, the mere possession of a con- trolled substance can be considered a felony under
21 U.S.C. § 844(a). 21 U.S.C. § 844(a) ("If a per- son commits the offense of possession of a con- trolled substance after a prior conviction or convic- tions under this subsection have become final, he shall be sentenced to a term of imprisonment of not more than 2 years, a fine of not more than $10,000, or both."). Under those circumstances, a defendant could conceivably be convicted under § 843(b) for using a telephone to facilitate the mere possession of a controlled substance. Such a conviction would not constitute a "controlled substance offense" be- cause simple possession is not "an offense under a .
. . 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, dis- tribute, or dispense." U.S.S.G. § 4B1.2(2).
n4 We are not aware of a single instance in which a court has concluded that a § 843(b) con- viction cannot qualify as a "controlled substance of- fense" for purposes of determining career offender status. Aware of the dearth of case law support- ing his argument, Williams cites several cases in- volving crimes that did not constitute "controlled substance offenses." See United States v. Dolt, 27
F.3d 235 (6th Cir. 1994) (concluding that a con-
The offense underlying Williams's § 843(b) convic- tion was the distribution of heroin in violation of 21 U.S.C.
§ 841(a). See Plea Agreement With Abdul Williams, App. at 22 ("The underlying offense is the distribution of heroin."). Without question, the distribution of heroin in violation of § 841(a) is "an offense under a . . . law prohibiting the . . . distribution . . . of a controlled sub- stance . . . ." U.S.S.G. § 4B1.2(2). *718 Williams's §
843(b) conviction must therefore be considered a "con- trolled substance offense" for purposes of determining career offender status.
B. In the alternative, Williams argues that § 4B1.2(2) is ambiguous, and asks us to invoke the rule of lenity to resolve the ambiguity in his favor. Br. for Appellant at 22-
24; see e.g., Rewis v. United States, 401 U.S. 808, 812,
28 L. Ed. 2d 493, 91 S. Ct. 1056 (1971) (explaining that the rule of lenity dictates that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity to the defendant ."). However, "because there is nothing ambiguous" about § 4B1.2(2), "the rule of lenity does not apply." United States v. Johnson, 155 F.3d 682,
685 (3d Cir. 1998).
Moreover, **11 even if we were to conclude that the Sentencing Guidelines' definition of "controlled sub- stance offense" was ambiguous, we would still be com- pelled to affirm. Several months after Williams was sen- tenced, the Sentencing Commission amended the com- mentary to § 4B1.2. n5 As amended, the commentary resolves any ambiguity that may have existed when Williams was sentenced, explaining that
Using a communications facility in commit- ting, causing, or facilitating a drug offense
176 F.3d 714, *718; 1999 U.S. App. LEXIS 9356, **11
Page 4
(21 U.S.C. § 843(b)) is a "controlled sub- stance offense" if the offense of conviction established that the underlying offense (the offense committed, caused, or facilitated) was a controlled substance offense.
U.S.S.G. App. C, Amend. 568 (effective Nov. 1, 1997)
(currently designated as U.S.S.G. § 4B1.2 Commentary, Application Note 1) ("Amendment 568").
n5 Williams was sentenced on July 14, 1997. The amendment became effective November 1,
1997.
It is beyond dispute that the offense underlying Williams's § 843(b) conviction **12 was the distri- bution of heroin in violation of 21 U.S.C. § 841. Without question, the distribution of heroin is a "controlled sub- stance offense." Therefore, if we give Amendment 568 retrospective effect, we must affirm.
Williams argues that because Amendment 568 be- came effective after he was sentenced, "it has no appli- cation to this appeal except to show that it was not at all clear at the time he was sentenced that a § 843(b) conviction " could be considered a "controlled substance offense." Br. for Appellant at 9, n.5. We reject this argu-
ment inasmuch as it ignores "the established principle that a post-sentencing amendment to a sentencing guideline or its comments should be given effect if it 'clarifies' the guideline or comment in place at the time of sentencing." United States v. Marmolejos, 140 F.3d 488, 490 (3d Cir.
1998).
Amendment 568 "does not overrule prior construc- tions of the Guideline." United States v. Bertoli, 40 F.3d
1384, 1405 (3d Cir. 1994) (internal quotations omitted). See section IIA, infra. Nor does it "effect a substantive change in the law." Marmolejos, 140 F.3d at 490. Rather, it "confirms our reading of the Guideline," thereby **13
"clarifying" § 4B1.2's definition of "controlled substance offense." Bertoli, 40 F.3d at 1405. See section IIA, supra. Therefore, we can apply Amendment 568 retrospectively without violating the ex post facto clause. Bertoli, 40
F.3d at 1405.
Amendment 568 unquestionably resolves this dispute in favor of the government. Thus, even if we were to con- clude that the Sentencing Guidelines' definition of "con- trolled substance offense" was ambiguous when Williams was sentenced, we would still affirm.
III.
For the foregoing reasons, we affirm.
Contents
Prev
Next
Last
