United States v. Perez , 79 F. App'x 519 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
10-30-2003
USA v. Perez
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2066
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 03-2066
UNITED STATES OF AMERICA
v.
RAFAEL PEREZ,
Appellant
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Crim. Action No. 02-cr-00018-1)
District Judge: Honorable Anne E. Thompson
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 17, 2003
BEFORE: SLOVITER, ROTH and STAPLETON, Circuit Judges
(Opinion Filed: October 30, 2003)
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Rafael Perez appeals from the District Court’s imposition of a sentence of
85 months imprisonment based on Perez’s plea of guilty to one count of knowingly and
intentionally possessing with intent to distribute a quantity of heroin, in violation of 21
U.S.C. § 841. We will affirm.
I.
Because we write solely for the benefit of the parties, we recount the facts
and the procedural history of the case only as they are relevant to the following
discussion. The record reflects that on January 10, 2002 a two-count indictment was filed
in the District of New Jersey, charging Perez with one count of knowingly and
intentionally distributing and possessing with intent to distribute heroin and one count of
knowingly and intentionally possessing with intent to distribute heroin, both in violation
of 21 U.S.C. § 841. On May 1, 2002, Perez pled guilty to the second count of knowingly
and intentionally possessing with intent to distribute a quantity of heroin. In exchange for
his guilty plea, the United States agreed to a dismissal of the first charge.
Under the terms of the plea agreement, Perez stipulated that, among other
things, he “had at least two prior felony convictions for a crime of violence or a
controlled substance offense that are counted separately. Accordingly, the defendant
Rafael Perez is a career criminal. Therefore, the approximate Base Offense Level is 32
with a Criminal History Category VI. See U.S.S.G. § 4B1.1(C).” App. 18. In the
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Presentence Investigation Report, the United States Probation Office recommended a
base offense level of 32. PSI at 7. This conclusion was based upon U.S.S.G. § 4B1.1,
which states that a career offender’s criminal history should be Category VI and his
offense level range is 12 to 37. Pursuant to U.S.S.G. § 3E1.1, Perez's offense level was
reduced a total of 3 points for acceptance of responsibility, for a total offense level of 29.
PSI at 6. The United States Sentencing Guidelines’ Sentencing Table directs that a
defendant with a Criminal History Category of VI and an Offense Level of 29 should
receive a sentence of 151-188 months imprisonment. The maximum allowable penalty
under 21 U.S.C. § 841(b)(1)(C) is 240 months imprisonment.
At the sentencing hearing, Perez’s counsel argued that one of Perez’s
predicate career offender convictions arose under a New Jersey general conspiracy
statute, and therefore did not qualify as a controlled substance offense giving rise to
career offender status.1 The District Judge determined that Perez had been appropriately
designated as a career offender, but she agreed with Perez’s counsel that a departure
under United States v. Shoupe, 988 F.2d 440 (3d Cir. 1993), was appropriate. Perez was
sentenced to 85 months imprisonment. The sole question for decision is whether Perez’s
state conviction for conspiracy is properly classified as a predicate controlled substance
offense pursuant to U.S.S.G. § 4B1.1.
1
Perez pled guilty to conspiracy under N.J. Stat. Ann. § 2C:5-2 on June 6, 1992.
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II.
We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a). We exercise plenary review over a District Court’s determination
that an offense constituted a controlled substance offense for purposes of determining
career offender status under U.S.S.G. § 4B1.1. See United States v. Shabazz, 233 F.3d
730, 731 (3d Cir. 2000), United States v. Williams, 176 F.3d 714, 715 (3d Cir. 1999).
The Sentencing Guidelines provide that a defendant is a career offender if
(1) the defendant was at least eighteen years old at the time the defendant committed the
instant offense of conviction; (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. 2002). Under this provision, every career offender is
given a criminal history category of VI. Id. In addition, a career offender is given an
enhanced offense level that is calculated based upon the maximum statutory penalty for
the offense on which he is being sentenced. Id.; see also, Shoupe, 929 F.2d at 119.
The Sentencing Reform Act requires a sentencing court to impose a
sentence within the range prescribed by the Sentencing Guidelines “unless the court finds
that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing Commission in formulating the
guideline that should result in a sentence different from that described.” 18 U.S.C.
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§ 3553(b). This provision is mandatory. See United States v. Uca, 867 F.2d 783, 786 (3d
Cir. 1989).
III.
We find that the District Court correctly determined that Perez’s 1992
conspiracy conviction under N.J. Stat. Ann § 2C:5-2 was a controlled substance offense
under U.S.S.G. § 4B1.2(b), justifying his status as a career offender under the Sentencing
Guidelines.
Perez argues on appeal that the District Court erred when it determined that
his previous conviction under N.J. Stat. Ann. § 2C:5-2, a New Jersey general conspiracy
statute, was a controlled substance offense for purposes of assigning him career offender
status under U.S.S.G. § 4B1.1. The Sentencing Guidelines define a controlled substance
offense as
an offense under federal or state law, punishable by a term of imprisonment of
more than one year, that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export, distribute, or dispense.
U.S.S.G. § 4B1.2(2). See also, United States v. Williams, 176 F.3d 714, 716 (3d Cir.
1999). In the Commentary to § 4B1.2, the Sentencing Guidelines specify that a
“‘controlled substance offense’ include[s] the offenses of . . . conspiring . . . to commit
such crimes.” U.S.S.G. § 4B1.2 cmt., application note 1.
N.J. Stat. Ann. § 2C:5-2(a) states
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A person is guilty of conspiracy with another person or persons to commit a
crime if with the purpose of promoting or facilitating its commission he:
(1) Agrees with such other person or persons that they or one or
more of them will engage in conduct which constitutes such
crime or an attempt or solicitation to commit such crime; or
(2) Agrees to aid such other person or persons in the planning or
commission of such crime or of an attempt or solicitation to
commit such crime.
Perez contends that N.J. Stat. Ann. § 2C:5-2(a) is not a controlled substance offense
under U.S.S.G. § 4B1.1 because it prohibits conspiracies to commit any crime and one
can be convicted under it without having manufactured, imported, exported, distributed,
or dispensed a controlled substance or possessed a controlled substance with intent to
manufacture, import, export, distribute, or dispense.
Under United States v. Shabazz, 233 F.3d 730, 733 (3d Cir. 2002), when a
criminal statute embraces more than drug offenses, the sentencing court should ascertain
if the conduct that caused the conviction under the statute was a controlled substance
offense. In Shabazz, this Court quoted with approval the Eleventh Circuit’s instruction to
the district court upon remand in a similar case:
to examine easily produced and evaluated court documents, such as any
helpful plea agreements or plea transcripts, any presentencing reports adopted
by the sentencing judges, and any findings made by the sentencing judges, in
order to determine whether the prior convictions qualified as predicate
offenses for enhancement under [U.S.S.G.] § 4B1.1.
Id. at 732 (quoting United States v. Hernandez, 145 F.3d 1433, 1440 (11th Cir. 1998)).
In this case, easily produced state court documents indicate that Perez was
convicted under New Jersey’s general conspiracy statute for his role in the distribution of
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heroin. Specifically, Perez’s state court plea form indicates that he pled guilty to two
counts of conspiracy to distribute heroin. The conduct for which Perez was convicted
under N.J. Stat. Ann § 2C:5-2 therefore involves the distribution of a controlled
substance, qualifying as a predicate offense for the determination of career offender status
under U.S.S.G. § 4B1.1.
IV.
For the foregoing reasons, the judgment of the District Court will be
AFFIRMED.
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TO THE CLERK:
Please file the foregoing Not Precedential Opinion.
/s/ Walter K. Stapleton
Circuit Judge