United States v. Martez Smith ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1117
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARTEZ L. SMITH,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 18-cr-20037 — Michael M. Mihm, Judge.
____________________
ARGUED OCTOBER 28, 2020 — DECIDED MARCH 3, 2021
____________________
Before RIPPLE, WOOD, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. Illinois law enforcement agents re-
ceived a tip from a confidential source claiming that Martez
Smith had been dealing methamphetamine in Mattoon, Illi-
nois. The agents conducted controlled buys between Smith
and the source, and in the course of the investigation, re-
quested a patrol officer stop Smith’s vehicle. During that stop,
the officer found marijuana, a marijuana grinder, and a fire-
arm in Smith’s vehicle. The officer arrested Smith and seized
2 No. 20-1117
the gun. A federal grand jury indicted Smith on one count of
distributing methamphetamine and one count of possessing
a firearm as a felon.
Represented by court-appointed counsel, Smith pleaded
guilty to both counts. He then sought to retract his guilty plea,
alleging ineffective assistance of counsel. The court denied
Smith’s motion to withdraw his guilty plea, rejected his re-
quest for an evidentiary hearing, and sentenced him on the
two counts. On appeal, Smith challenges the district court’s
denial of his ineffective assistance of counsel claim and his ca-
reer offender sentencing enhancement. We affirm the district
court’s decision in full.
I
A
In July 2018, Illinois law enforcement agents received a tip
from a confidential source, who claimed he had been purchas-
ing methamphetamine from Martez Smith in the Mattoon,
Illinois area for the past two months. Based on this infor-
mation, the agents arranged a series of controlled buys be-
tween Smith and the source.
The first controlled buy occurred on July 9, 2018. After the
transaction, the source returned to the agents and gave them
approximately 46 grams of “ice” methamphetamine that he
had just purchased from Smith. With a failed attempt in the
interim, the agents conducted another controlled buy on July
27. As instructed, the source text messaged Smith to purchase
three ounces of methamphetamine. Smith replied “yea” and
agreed on a time for the transaction. That day, the agents ob-
served Smith driving as if to avoid surveillance while en route
to the scheduled transaction and requested a nearby patrol
No. 20-1117 3
officer to pull him over. The officer identified Smith’s vehicle,
noticed it had “extremely dark window tinting,” and ordered
Smith to stop. When he attempted to measure the window
tint, the officer realized that the batteries of his tint meter had
failed, so he radioed other officers to bring him a new one.
During the approximately ten-minute wait, the officer
learned that Smith’s driver’s license had been suspended. He
asked Smith if he had any contraband in the vehicle. Smith
said no. The officer then searched the vehicle and found a
small amount of marijuana, a marijuana grinder, and a 9mm
pistol with a 30-round extended magazine attached. 1 In a later
interview, Smith admitted to possessing the firearm but de-
nied selling methamphetamine.
B
In August 2018, a federal grand jury indicted Smith on two
counts: (1) distribution of 50 grams or more of methampheta-
mine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)
(“Count 1”); and (2) possession of a firearm by a felon in vio-
lation of 18 U.S.C. § 922(g) (“Count 2”). Smith pleaded not
guilty to both counts.
The district court appointed Attorney Johanes Maliza to
represent Smith. With Maliza’s representation, Smith
changed his plea to guilty in November 2018. During the
change-of-plea hearing before the magistrate judge, the par-
ties agreed that, in addition to the felon-in-possession charge,
Smith would plead guilty only to the lesser-included offense
of distributing controlled substance between 5 and 50 grams
1Whether Smith consented to the vehicle search is disputed, but the
answer to that question does not affect our decision.
4 No. 20-1117
because the laboratory results revealed that Smith sold less
than 50 grams of methamphetamine.
The ensuing plea colloquy was thorough. Smith testified
under oath in response to the court’s questions. The magis-
trate judge asked Smith whether he had sufficient time to re-
view the case with his counsel, whether he was satisfied with
his counsel’s representation, and whether he discussed the
specific charges with his counsel. Smith answered “yes” to all
three questions and admitted under oath that he distributed
methamphetamine on July 9, 2018, and knowingly possessed
a firearm as a felon on July 27, 2018. The court then asked
Smith how he wanted to plead, to which Smith answered
“guilty” on both counts.
Following his guilty plea but before sentencing, Smith
filed two pro se motions seeking to withdraw his pleas based
on ineffective assistance of counsel. Among various claims,
Smith alleged that Maliza failed to investigate and to file a
motion to suppress the firearm found in his car. Simultane-
ously, Maliza moved to withdraw as counsel, citing “a direct
and irreconcilable conflict of interest” with Smith. The court
granted Maliza’s motion and appointed new counsel. By
counsel, Smith then moved to withdraw his guilty plea and
requested that the court hold an evidentiary hearing on
Maliza’s alleged ineffective assistance. The district court de-
nied both requests and proceeded to sentencing.
The presentence investigation report recommended a ca-
reer offender enhancement under U.S.S.G. § 4B1.1 for Smith’s
two prior convictions: a 2009 federal conviction for conspiring
to possess with intent to distribute cocaine in violation of
21 U.S.C. § 846 and a 2013 Indiana conviction for attempted
armed robbery. Smith objected to this enhancement, arguing
No. 20-1117 5
that his conspiracy conviction does not constitute a predicate
“controlled substance offense” as required by the provision.
Specifically, he asserted that the plain language of the Sen-
tencing Guidelines does not include inchoate offenses like
§ 846 narcotics conspiracy.
Relying on United States v. Adams, 934 F.3d 720 (7th Cir.
2019), the district court rejected Smith’s argument and held
that § 846 conspiracy constitutes a predicate “controlled sub-
stance offense.” It concluded that Smith qualified for the ca-
reer-offender enhancement under § 4B1.1. The district court
sentenced Smith to 214 months’ imprisonment on Count 1
and 120 months’ imprisonment on Count 2 to be served con-
currently. Smith timely appealed to this court.
II
A
Smith first challenges the district court’s denial of his mo-
tion to withdraw his guilty plea, which we review for an
abuse of discretion. United States v. Barr, 960 F.3d 906, 917 (7th
Cir. 2020).
A defendant may withdraw a guilty plea after the district
court accepts the plea, but before it imposes a sentence, by
showing “a fair and just reason for requesting the with-
drawal.” FED. R. CRIM. P. 11(d)(2)(B). Ineffective assistance of
counsel serves as a “fair and just” reason for withdrawing a
plea. See United States v. Graf, 827 F.3d 581, 583–84 (7th Cir.
2016); see also Hurlow v. United States, 726 F.3d 958, 967 (7th
Cir. 2013) (noting that a plea that resulted from ineffective as-
sistance of counsel cannot be knowing and voluntary). To es-
tablish ineffective assistance of counsel, a defendant must
show that his counsel rendered deficient performance and
6 No. 20-1117
that the deficiency prejudiced him. Strickland v. Washington,
466 U.S. 668, 688, 694 (1984). In other words, a defendant must
show that his counsel rendered objectively unreasonable per-
formance and that, but for counsel’s errors, the outcome
would have been different. Id. We need not address both de-
ficient performance and prejudice prongs “if the defendant
makes an insufficient showing on one.” Id. at 697; see Armfield
v. Nicklaus, 985 F.3d 536, 548 (7th Cir. 2021) (same).
In the guilty plea context, we apply the modified Strickland
analysis articulated in Hill v. Lockhart, 474 U.S. 52 (1985). See
Gish v. Hepp, 955 F.3d 597, 605 (7th Cir. 2020). Under Hill, the
deficient performance prong remains largely unchanged. A
defendant must show that his counsel rendered objectively
unreasonable performance and “performed seriously below
professional standards.” United States v. Williams, 698 F.3d
374, 386 (7th Cir. 2012). On the prejudice prong, a defendant
must show a “reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have in-
sisted on going to trial.” Lee v. United States, 137 S. Ct. 1958,
1965 (2017) (quoting Hill, 474 U.S. at 59). The prejudice in-
quiry into counsel’s failure to investigate “will depend on the
likelihood that discovery of the evidence would have led
counsel to change his recommendation as to the plea.” Hill,
474 U.S. at 59 (adding that “[t]his assessment, in turn, will de-
pend in large part on a prediction whether the evidence likely
would have changed the outcome of a trial”).
A guilty plea, however, “should not lightly be with-
drawn.” United States v. Brown, 973 F.3d 667, 715 (7th Cir.
2020). Courts must “not upset a plea solely because of post hoc
assertions from a defendant about how he would have
pleaded but for his attorney’s deficiencies.” Lee, 137 S. Ct. at
No. 20-1117 7
1967. We instead “look to contemporaneous evidence to sub-
stantiate a defendant’s expressed preferences” and only allow
a withdrawal if we are convinced that the defendant would
have pleaded differently. Id.Smith alleges three deficiencies in Maliza’s performance:
(1) failure to investigate and file a motion to suppress the fire-
arm found in the car; (2) pressure to hastily plead guilty; and
(3) general unfamiliarity with the facts of the case. The district
court denied these claims as either lacking merit or otherwise
undermined by the record. We agree and analyze each of
Smith’s arguments in turn.
Motion to Suppress. When the alleged deficiency is based
on counsel’s failure to move to suppress evidence, a defend-
ant must “prove the motion was meritorious.” Long v. United
States, 847 F.3d 916, 920 (7th Cir. 2017) (internal quotation
marks omitted). But here any alleged deficiency by Maliza
matters only if Smith could show that suppressing the firearm
evidence likely would have changed the outcome of the trial.
Hill, 474 U.S. at 59.
Smith claims that a motion to suppress would have suc-
ceeded because the patrol officer did not have consent or a
warrant to search his vehicle. Warrantless searches are per se
unreasonable under the Fourth Amendment, unless an excep-
tion applies. United States v. Kizart, 967 F.3d 693, 695 (7th Cir.
2020) (citing Arizona v. Gant, 556 U.S. 332, 338 (2009)). The rec-
ord suggests that the automobile exception applies here. Un-
der the automobile exception, an officer may search a vehicle
without a warrant if there is probable cause. Kizart, 967 F.3d
at 695; see United States v. Sands, 815 F.3d 1057, 1061–62 (7th
Cir. 2015) (“A warrantless arrest is constitutionally permissi-
ble if supported by probable cause … .”). Probable cause
8 No. 20-1117
exists “if, given the totality of the circumstances, there is a fair
probability that contraband or evidence of a crime will be
found in a particular place.” United States v. Eymann, 962 F.3d
273, 286 (7th Cir. 2020) (internal quotation marks omitted).
The patrol officer here had probable cause to stop Smith
and search his vehicle. Law enforcement agents had already
conducted a controlled buy, and they had scheduled another
on the day of the arrest. The agents even had text message
evidence detailing the transaction planned for later that day.
Smith was also driving suspiciously moments before the of-
ficer stopped him and had illegally tinted windows on his car.
And although the officer may not have known all the facts
supporting probable cause, he was acting at the direction of
the agents who did. See United States v. Khan, 937 F.3d 1042,
1052 (7th Cir. 2019) (noting that the collective knowledge doc-
trine “permits a stop at the direction of, or based on infor-
mation relayed from, another law enforcement agency”); see
also United States v. Nicksion, 628 F.3d 368, 376–77 (7th Cir.
2010) (finding that the collective knowledge of law enforce-
ment provided ample probable cause for officers to stop and
arrest the defendant and search his vehicle). The totality of the
circumstances leading up to the stop demonstrates a fair
probability that Smith’s vehicle contained contraband. The of-
ficer therefore had probable cause to stop Smith and to search
his vehicle. Without more, Smith cannot establish that he
would have succeeded on his motion to suppress the firearm
evidence.
Time Pressure. Smith also contends that Maliza rendered
ineffective assistance by pressuring him to take the guilty
plea. He alleges Maliza did so in part by telling him that the
government would file a superseding indictment with an
No. 20-1117 9
additional charge if Smith did not plead guilty before the
grand jury reconvened. The district court dismissed Smith’s
claims as conclusory or otherwise undermined by the record
noting that “that there was no pressure for the defendant to
plead immediately.”
We give special weight to a defendant’s sworn testimony
in a Rule 11 plea colloquy. See Graf, 827 F.3d at 584 (“A de-
fendant’s motion to withdraw is unlikely to have merit if it
seeks to dispute his sworn assurances to the court.”). That tes-
timony is presumed true, and the defendant bears a heavy
burden to overcome this presumption. See United States v.
Chavers, 515 F.3d 722, 724 (7th Cir. 2008). Smith expressly
acknowledged during his plea colloquy that he had sufficient
time to discuss the case with Maliza. As the district court
found, the magistrate judge “was careful to give the defend-
ant several opportunities where he could have said that he
was being pressured … [and] sufficient opportunity to say
that he wanted more time.” At one point, Maliza even offered
to adjourn the hearing to allow time to file corrected infor-
mation, which cuts against Smith’s argument that his counsel
had rushed him to plead guilty.
Smith cannot show prejudice. He fails to demonstrate a
reasonable probability that, but for Maliza’s pressure, he
would not have pleaded guilty. The district court was correct
to reject this claim.
Counsel’s Lack of Familiarity. Smith next asserts Maliza ren-
dered ineffective assistance because he lacked familiarity with
the facts of the case, emphasizing that the public defender was
“confused and unfamiliar with the relevant facts.” To support
this claim, Smith points to a portion of the change-of-plea
hearing transcript where Maliza appears to fumble with his
10 No. 20-1117
words: “Again, Your Honor, I haven’t seen as much. There
was some stuff that I did—I don’t, I don’t think I noticed, but
the—certainly, the evidence that pertains to the ele-
ments … the essential elements of the crime, yes.” Smith also
complains that he “himself had to speak up to correct his at-
torney’s misrepresentations.”
Smith’s challenge falls short of demonstrating ineffective
assistance of counsel. “An ineffective assistance of counsel
claim cannot stand on a blank record, peppered with the de-
fendant’s own unsupported allegations of misconduct.”
United States v. Hodges, 259 F.3d 655, 660 (7th Cir. 2001). The
district court noted that Smith took Maliza’s statements “out
of context” and read “far too much into them.” The hearing
transcript shows that Maliza made the spotlighted statement
to confirm that the government presented evidence that met
the essential elements of the drug and firearm charges while
disagreeing with some of the details. Viewing the statement
in context, the district court recognized that Maliza actually
demonstrated familiarity with the case. There is no support in
the record for the assertion that Maliza made a misrepresen-
tation or that suggests his unfamiliarity with the case. The dis-
trict court therefore properly exercised its discretion to
conclude that Smith’s arguments lack record support and that
he was not prejudiced.
B
Smith insists that the district court erred by denying his
request for an evidentiary hearing to support his motion to
withdraw his guilty plea. We review the district court’s deci-
sion not to hold an evidentiary hearing for abuse of discretion,
see United States v. Jones, 381 F.3d 615, 618 (7th Cir. 2004), and
its “factual findings, including whether the defendant
No. 20-1117 11
knowingly and voluntarily entered the plea, for clear error.”
United States v. Perillo, 897 F.3d 878, 883 (7th Cir. 2018).
A motion to withdraw a plea does not automatically enti-
tle a defendant to an evidentiary hearing because “[w]hether
to hold a hearing on the plea’s validity is a matter left to the
trial court’s sound discretion.” United States v. Collins, 796 F.3d
829, 834 (7th Cir. 2015). To illustrate, an evidentiary hearing is
not required “if the petitioner makes allegations that are
vague, conclusory, or palpably incredible, rather than
detailed and specific.” Gaylord v. United States, 829 F.3d 500,
506–07 (7th Cir. 2016) (internal quotation marks omitted). A
district court need not hold an evidentiary hearing if the de-
fendant fails to offer substantial evidence “or if the allegations
advanced in support of the motion are conclusory or unrelia-
ble.” Collins, 796 F.3d at 834.
The district court did not abuse its discretion by denying
Smith’s request for an evidentiary hearing. The only argu-
ment that it found as “possibly not a conclusory allegation”
was the potential success of the motion to suppress. But the
district court explained that the government provided “the
uncontested proffer” of independent probable cause to stop
Smith and search his car. Because Smith’s motion to suppress
would not have been successful, no evidentiary hearing was
necessary.
III
Smith next challenges his career offender enhancement.
According to Smith, his prior conviction for conspiring to traf-
fic cocaine, in violation of 21 U.S.C. § 846, does not constitute
a predicate “controlled substance offense” under U.S.S.G.
§ 4B1.2. We review the district court’s application of the
12 No. 20-1117
Sentencing Guidelines de novo. United States v. Lewis, 842 F.3d
467, 476 (7th Cir. 2016).
We look first to the text of the guidelines provisions that
Smith disputes. Under § 4B1.1, a defendant is a career of-
fender if: (1) he was at least 18 years old when he committed
the offense; (2) the instant offense is a crime of violence or a
controlled substance offense; and (3) he “has at least two prior
felony convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1(a). Section 4B1.2, in rele-
vant part, defines “controlled substance offense” as “an
offense under federal or state law … that prohibits the manu-
facture, import, export, distribution, or dispensing of a
controlled substance (or a counterfeit substance) or the pos-
session of a controlled substance (or a counterfeit substance)
with intent to manufacture, import, export, distribute, or dis-
pense.” U.S.S.G. § 4B1.2. Application Note 1 to § 4B1.2 defines
“controlled substance offense” to include aiding and abetting,
conspiring, and attempting to commit such offenses. U.S.S.G.
§ 4B1.2 cmt. n.1. Smith contends that Application Note 1 is an
improper expansion of § 4B1.2.
Courts treat the application notes to the Sentencing Guide-
lines like an agency’s interpretation of its own rules. See
Stinson v. United States, 508 U.S. 36, 44–45 (1993). In Stinson,
the Supreme Court held that courts must give application
notes “controlling weight.” Id. at 45 (quoting Bowles v. Semi-
nole Rock & Sand Co., 325 U.S. 410, 414 (1945)). A correspond-
ing application note is binding authority “unless it violates
the Constitution or a federal statute, or is inconsistent with, or
a plainly erroneous reading of, that guideline.” Id. at 38; see
United States v. Tate, 822 F.3d 370, 375 (7th Cir. 2016) (same).
We apply the application notes as “authoritative glosses on
No. 20-1117 13
the Guidelines, unless the notes conflict with the text.” United
States v. Raupp, 677 F.3d 756, 759 (7th Cir. 2012), overruled on
other grounds by United States v. Rollins, 836 F.3d 737 (7th Cir.
2016).
A split of authority exists among many of the circuits as to
whether courts are to defer to Application Note 1 when ap-
plying § 4B1.2. In United States v. Winstead, the D.C. Circuit
recognized a conflict between the text of § 4B1.2 and Applica-
tion Note 1. 890 F.3d 1082 (D.C. Cir. 2018). It applied the in-
terpretative canon expressio unius est exclusio alterius to note
that § 4B1.2 “presents a very detailed ‘definition’ of controlled
substance offense that clearly excludes inchoate offenses.” Id.
at 1091. Given that the text of § 4B1.2 does not expressly in-
clude inchoate offenses, the D.C. Circuit concluded that Ap-
plication Note 1 improperly expands the provision’s scope
and declined to recognize an attempt crime as a controlled
substance offense. Id. at 1091–92.
Similarly, the Sixth Circuit in United States v. Havis did not
extend the definition of controlled substance offense to in-
clude attempt crimes. 927 F.3d 382 (6th Cir. 2019) (en banc)
(per curiam). It emphasized that the application notes to the
Sentencing Guidelines “serve[] only to interpret the Guide-
lines’ text, not to replace or modify it.” Id. at 386 (emphasis in
original). Because Application Note 1 adds to § 4B1.2’s textual
definition, rather than interprets it, the Sixth Circuit found the
more expansive construction impermissible. Id. at 386–87. Fi-
nally, the Third Circuit concluded the same in United States v.
Nasir, 982 F.3d 144, 159–60 (3d Cir. 2020) (en banc). In addition
to the expressio unius argument, that court raised a separa-
tion-of-powers concern—namely, that deferring to the appli-
cation notes circumvents “the checks Congress put on the
14 No. 20-1117
Sentencing Commission.” Id. at 159. The Third Circuit “con-
clude[d] that inchoate crimes are not included in the defini-
tion of ‘controlled substance offenses’ given in section
4B1.2(b).” Id. at 160. Smith relies on these cases to support his
position.
Our court’s precedent holds otherwise, and we see no rea-
son here to diverge from it. In United States v. Adams, we held
that the term “controlled substance offense” encompasses in-
choate offenses. 934 F.3d at 729–30. There, the defendant chal-
lenged the sentencing enhancement under U.S.S.G. § 2K2.1,
which raises the base offense level for a felon-in-possession
conviction when the defendant also has a prior conviction for
a controlled substance offense. Id. at 727. Section 2K2.1’s Ap-
plication Note 1 references § 4B1.2’s Application Note 1 for
the definition of “controlled substance offense.” U.S.S.G.
§ 2K2.1 cmt. n.1 (noting that “‘[c]ontrolled substance offense’
has the meaning given that term in § 4B1.2(b) and Application
Note 1 of the Commentary to § 4B1.2”). We concluded that
§ 4B1.2’s Application Note 1 is authoritative and that “con-
trolled substance offense” includes inchoate offenses. Adams,
934 F.3d at 729–30. In reaching this conclusion, we relied on
Raupp, which deferred to Application Note 1 when applying
§ 4B1.2 and found no conflict between them. 677 F.3d at 759.
(“There cannot be a conflict because the text of § 4B1.2(a) does
not tell us, one way or another, whether inchoate offenses are
included or excluded.”). Several other circuits agree. See, e.g.,
United States v. Lange, 862 F.3d 1290, 1294–96 (11th Cir. 2017);
United States v. Nieves-Borrero, 856 F.3d 5, 9 (1st Cir. 2017);
United States v. Chavez, 660 F.3d 1215, 1228 (10th Cir. 2011);
United States v. Mendoza-Figueroa, 65 F.3d 691, 694 (8th Cir.
1995) (en banc).
No. 20-1117 15
Smith attempts to distinguish Adams from this case but to
no avail. He emphasizes that Adams dealt with a sentencing
enhancement under § 2K2.1, whereas here we address a sen-
tencing enhancement under § 4B1.1. But to distinguish Adams
would require us to find that there is a conflict between
§ 4B1.2 and Application Note 1 when interpreting § 4B1.1 but
that no such conflict exists when interpreting § 2K2.1. We can-
not reconcile Smith’s position with our holding in Adams.
That brings us to our final issue: does § 4B1.2’s Application
Note 1 encompass § 846 conspiracy under the categorical ap-
proach? The categorical approach asks courts to look to the
generic elements of a crime, rather than the facts underlying
how the crime was committed, when determining whether a
prior conviction is a “controlled substance offense.” United
States v. Smith, 921 F.3d 708, 712 (7th Cir. 2019). A “generic”
version of an offense means “the offense as commonly under-
stood.” Mathis v. United States, 136 S. Ct. 2243, 2247 (2016). “If
the elements of the crime of conviction are the same as, or nar-
rower than, the elements of the generic version of the offense,
the crime of conviction qualifies as a predicate offense.” Smith,
921 F.3d at 712 (citing Mathis 136 S. Ct. at 2247–48).
Smith thinks that under the categorical approach, his § 846
conspiracy conviction does not qualify as a predicate “con-
trolled substance offense.” He points to decisions from other
circuits that have concluded Application Note 1 does not in-
clude § 846 conspiracy. See, e.g., United States v. McCollum, 885
F.3d 300, 308–09 (4th Cir. 2018); United States v. Martinez-Cruz,
836 F.3d 1305, 1314 (10th Cir. 2016). These decisions found ge-
neric conspiracy to require an overt act in furtherance of the
conspiracy. Because § 846 lacks an overt-act requirement,
Smith asserts, it “criminalizes a broader range of conduct than
16 No. 20-1117
that covered by generic conspiracy.” He adds that a § 846 of-
fense does not fall within the ambit of § 4B1.2’s definition of
“controlled substance offense.”
The Second Circuit recently took a different approach in
United States v. Tabb, 949 F.3d 81 (2d Cir. 2020). The defendant
in Tabb argued that Application Note 1 covers only “generic”
conspiracy, and by implication, excludes the broader § 846
narcotics conspiracy. Id. at 88. The Second Circuit disagreed.
It first explained that generic conspiracy encompasses § 846
conspiracy because “[t]he essence of a conspiracy is an agree-
ment by two or more persons to commit an unlawful act.” Id.
Although it recognized that common law often required an
overt act as an element of a conspiracy offense, the Second
Circuit found the requirement unnecessary given that “Con-
gress has chosen to eliminate this requirement in the case of
several federal crimes, most notably narcotics conspiracy.” Id.
(citing United States v. Shabani, 513 U.S. 10, 14–15 (1994)). The
court concluded that reading Application Note 1 to cover
§ 846 narcotics conspiracy would best preserve the internal
consistency of the Sentencing Guidelines. Id. (noting that the
defendant’s reading would “require finding that term ‘con-
spiracy’ includes Section 846 narcotics conspiracy in some
parts of the guidelines, but not others” (citations omitted)).
Other circuits have drawn similar conclusions. See, e.g., United
States v. Rivera-Constantino, 798 F.3d 900, 903–94 (9th Cir.
2015); United States v. Rodriguez-Escareno, 700 F.3d 751, 753–54
(5th Cir. 2012).
We agree that Application Note 1 encompasses § 846 con-
spiracy. First, the plain language of Application Note 1 unam-
biguously includes conspiracy as a “controlled substance of-
fense.” U.S.S.G. § 4B1.2 cmt. n.1. We find no reason to
No. 20-1117 17
construe the word “conspiring” in Application Note 1 to ex-
clude § 846 conspiracy, especially given that an overt act is
not always a required element in the narcotics conspiracy con-
text.
Second, the narrow reading that Smith proposes would
lead to conflicting textual and structural consequences. Under
his reading, a § 846 conspiracy would constitute a controlled
substance offense when interpreting § 2K2.1, as we do in Ad-
ams, but not when interpreting § 4B1.1, as we do here. It
would also mean that the Sentencing Commission, when it
included the term “conspiring” in § 4B1.2’s Application Note
1, intended to exclude federal conspiracy from the federal Sen-
tencing Guidelines. See Tabb, 949 F.3d at 88 (citing Rivera-
Constantino, 798 F.3d at 904). That cannot be, so we are not
persuaded by Smith’s interpretation. Considering that “iden-
tical words and phrases within the same statute should nor-
mally be given the same meaning,” Powerex Corp. v. Reliant
Energy Servs., Inc., 551 U.S. 224, 232 (2007), we conclude that
reading § 4B1.2’s Application Note 1 to include § 846 conspir-
acy would best preserve the internal consistency of the
Sentencing Guidelines and avoid any textual or structural pit-
falls. Smith’s § 846 conspiracy conviction is thus a valid pred-
icate offense under § 4B1.1, and the district court correctly
applied the career offender enhancement to his sentence.
IV
For these reasons, we AFFIRM the district court’s decision.