United States v. Jose Maria Mendoza-Figueroa

LOKEN, Circuit Judge.

After Jose Maria Mendoza-Figueroa pleaded guilty to conspiracy to distribute marijuana, the district court¹ sentenced him as a career offender under U.S.S.G. § 4B1.1 because of his two prior drug convictions. Mendoza-Figueroa appealed the resulting 236-month sentence. A divided panel of this circuit reversed, agreeing with United States v. Price, 990 F.2d 1367 (D.C.Cir.1993), that the Sentencing Commission “exceeded the statutory underpinnings of the career offender provisions” by including drug conspiracy offenses in its definition of offenses that qualify a defendant for the career offender enhancement. United States v. Mendoza-Figueroa, 28 F.3d 766 (8th Cir.1994). We granted rehearing en banc because the panel opinion appeared to conflict with United States v. Baker, 16 F.3d 854 (8th Cir.1994), and with most other circuits that have considered this issue.² Agreeing with the majority of other circuits, we now affirm.

The district court’s finding that Mendoza-Figueroa is a career offender has direct support in the Guidelines and interpretive commentary. The operative guideline is § 4B1.1:

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 convictions of either a crime of violence or a controlled substance offense.

(Emphasis added.) Mendoza-Figueroa is over eighteen years old and has two prior controlled substance convictions; the issue is whether the instant offense, conspiracy to distribute marijuana, is a “controlled substance offense.” The underlying offense of distributing marijuana is a “controlled substance offense,” as that term is defined in the next guideline, U.S.S.G. § 4B1.2.³ A conspiracy to commit that controlled substance offense is then added to the definition by means of an interpretive commentary:

The terms “crime of violence” and “controlled substance offense” include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.

§ 4B1.2, comment, (n. 1) (emphasis added). In Stinson v. United States, — U.S. -, 113 S.Ct. 1913, 1919, 123 L.Ed.2d 598 (1993), which involved another career offender commentary, the Supreme Court defined the weight we must give the Commission’s interpretive commentary: “commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”

Every court has agreed that the Commission’s extensive statutory authority to fashion appropriate sentencing guidelines includes the discretion to include drug conspiracy offenses in the category of offenses that warrant increased prison terms for career offenders. See 28 U.S.C. § 994(a) — (f); Price, 990 F.2d at 1369; Heim, 15 F.3d at 832; Allen, 24 F.3d at 1186-87. See generally Mistretta v. United States, 488 U.S. 361, 375-78, 109 S.Ct. 647, 656-58, 102 L.Ed.2d 714 (1989). Nevertheless, the court in Price refused to enforce Note 1 to § 4B1.2. First, it held that the Commission did not base the career offender guidelines on its full statutory authority, relying upon the following background commentary:

28 U.S.C. § 994(h) mandates that the Commission assure that certain “career” offenders, as defined in the statute, receive a sentence of imprisonment “at or near the maximum term authorized.” Section 4B1.1 implements this mandate.

§ 4B1.1, comment, (backg’d). Then, because 28 U.S.C. § 994(h) specifies a limited group of controlled substance offenses for which harsher sentences are mandated, see § 994(h)(1)(B), and because drug conspiracy offenses are not included in this statutory listing, the court in Price concluded:

Here, the Commission has acted explicitly upon grounds that do not sustain its action. Because we find its stated basis— § 994(h) — inadequate for Application Note l’s inclusion of conspiracies, Note 1 [to § 4B1.2] cannot support Price’s sentence as a career offender. Thus, without passing on the Commission’s authority to readopt Application Note 1 to § 4B1.2 (or some variation of Note 1) on alternative grounds, we vacate the sentence and remand the ease to the district court for resentencing.

990 F.2d at 1370 (emphasis in original).⁴ Mendoza-Figueroa urges us to adopt Price’s reasoning. We decline to do so. Like nine other circuits, we conclude that the reasoning in Price is fatally flawed for a number of reasons.

First, the court in Price concluded from the background comment to § 4B1.1 that the Sentencing Commission did not intend to base its career offender guidelines on any statutory authority other than § 994(h). That analysis conflicts with the Supreme Court’s teaching in Stinson:

We do not think it helpful to treat commentary as a contemporaneous statement of intent by the drafters or issuers of the guideline.... We also find inapposite an analogy to an agency’s construction of a federal statute that it administers_ Although the analogy is not precise ... we think the government is correct in suggesting that the commentary be treated as an agency’s interpretation of its own legislative rule.

— U.S. at-, 113 S.Ct. at 1918-19. In other words, we should not treat the background commentary to § 4B1.1 as explaining the Commission’s intent in adopting career offender guidelines, and then invalidate an interpretive commentary because that explanation does not sufficiently justify the commentary under the administrative law principles of SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). Rather, under Stinson, we look only at whether an interpretive commentary — here, Note 1 to § 4B1.2 — (i) is within the Commission’s full statutory authority, and (ii) is a “plainly erroneous reading” of the guideline it interprets. Every court has agreed that Note 1 is within the Commission’s statutory authority, and Mendoza-Figueroa does not argue, and in our view could not tenably argue, that Note 1 is a plainly erroneous reading of § 4B1.2. Therefore, we must enforce Note 1 in accordance with its terms. See Hightower, 25 F.3d at 185; Piper, 35 F.3d at 617.

Second, even if Stinson did not eliminate the issue of Commission intent, we conclude that the Commission’s intent in defining career offenders cannot be derived solely from the background commentary to § 4B1.1. The Commission has declared, “guidelines and policy statements promulgated by the Commission are issued pursuant to Section 994(a) of Title 28, United States Code.” U.S.S.G., Ch. 1, Part A, § 1. It is unreasonable to read the background commentary to § 4B1.1 as somehow nullifying or retracting that general statement of the Commission’s intent in exercising its statutory authority. See Heim, 15 F.3d at 832; Damerville, 27 F.3d at 257; Kennedy, 32 F.3d at 888-89.

Under § 4B1.1, a career offender is assigned a high base offense level and is placed in the highest criminal history category. In the introductory commentary to the criminal history category guidelines, the Commission stated, “General deterrence of criminal conduct dictates that a clear message be sent to society that repeated criminal behavior will aggravate the need for punishment with each recurrence.” U.S.S.G. Ch. 4, Pt. A, intro, comment. Given the interplay between the career offender guideline and the criminal history guidelines, which have a broad anti-recidivist objective, it is unreasonable to conclude that the Commission intended to base § 4B1.1 on the limited authority of § 994(h), particularly because the interpretive commentaries to § 4B1.2 are expressly to the contrary.

Finally, even if the Commission did intend to base its career offender guidelines only on § 994(h), that statute is ample authority to include drug conspiracies as qualifying offenses. See Kennedy, 32 F.3d at 889; Piper, 35 F.3d at 618. Section 994(h) “mandates” that certain classes of recidivists receive heightened prison sentences. The legislative history explained:

[Substantial prison terms should be imposed on repeat violent offenders and repeat drug traffickers.... It should be noted that [28 U.S.C. § 994](h) and (i) are 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. 225, 98th Cong., 1st Sess. 176 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3358-59. Congress has elsewhere directed that drug conspiracies should be subject to the same penalties as the underlying controlled substance offenses. See 21 U.S.C. § 846. That purpose is obviously furthered by Note 1 to § 4B1.2. Thus, the Commission reasonably interpreted § 994(h) as a broad directive to provide harsh penalties for recidivists, rather than as a limited, categorical definition of offenders who warrant recidivist penalties.

The “overall context suggests that Congress’s ‘mandate’ directed the Commission to accord career offender treatment to whatever drug related crimes the Commission believed to be on a par with the offenses enumerated in section 994(h).” United States v. Piper, 35 F.3d 611, 618 n. 5 (1st Cirl994). The statute “does not define the only crimes for which the Commission may specify a sentence at or near the maximum; it merely declares that the enumerated crimes must be so treated.” Baker, 16 F.3d at 856. See also United States v. Consuegra, 22 F.3d 788 (8th Cir.1994) (language and purpose of § 994(h) require that it be applied to state as well as federal controlled substance offenses).

For the foregoing reasons, we conclude that U.S.S.G. § 4B1.2, comment, (n. 1), is a reasonable interpretation of the career offender guidelines that is well within the Sentencing Commission’s statutory authority. Because this commentary interprets § 4B1.2 as including drug conspiracies, the district court properly determined that Mendoza-Figueroa should be sentenced as a career offender. The district court correctly applied the career offender provisions in determining Mendoza-Figueroa’s sentence. Accordingly, its judgment must be affirmed.

1 . The HONORABLE WARREN K. URBOM, Senior United States District Judge for the District of Nebraska.

2 . Nine other circuits have rejected Price. See United States v. Piper, 35 F.3d 611 (1st Cir.), cert. denied, — U.S. -, 115 S.Ct. 1118, 130 L.Ed.2d 1082 (1995); United States v. Jackson, 60 F.3d 128 (2d Cir.1995); United States v. Hightower, 25 F.3d 182 (3d Cir.), cert. denied, - U.S. -, 115 S.Ct. 370, 130 L.Ed.2d 322 (1994); United States v. Kennedy, 32 F.3d 876 (4th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 939, 130 L.Ed.2d 883 (1995); United States v. Williams, 53 F.3d 769 (6th Cir.1995); United States v. Damerville, 27 F.3d 254 (7th Cir.) cert. denied, — U.S. -, 115 S.Ct. 445, 130 L.Ed.2d 355 (1994); United States v. Heim, 15 F.3d 830 (9th Cir.), cert. denied, - U.S. -, 115 S.Ct. 55, 130 L.Ed.2d 14 (1994); United States v. Allen, 24 F.3d 1180 (10th Cir.), cert. denied, 115 S.Ct. 493 (1994); and United States v. Weir, 51 F.3d 1031 (11th Cir.1995). Price was followed in United States v. Bellazerius, 24 F.3d 698 (5th Cir.), cert. denied, — U.S. -, 115 S.Ct. 375, 130 L.Ed.2d 326 (1994).

3 .§ 4B1.2(2) provides: “The term 'controlled substance offense’ means an offense under a federal or state law prohibiting the ... distribution ... of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to ... distribute...."

4 . After Price, the Commission proposed an amendment to its background commentary stating that § 4B1.1 is based upon the Commission's general authority, as well as § 994(h). See 58 Fed.Reg. 67520, 67532 (1993). No action was taken on that proposal. Earlier this year, the Commission approved and sent to Congress a nearly identical amendment, which is scheduled to take effect November 1, 1995. See 60 Fed. Reg. 25074, 25086-87 (1995).