                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          AUG 11 2003

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                 Nos. 02-2277 and 02-2298
 v.                                            (D.C. Nos. CR-01-112-JC and
                                                      CR-01-111-JC)
 LAWRENCE ROBERT CORTEZ, also                          (New Mexico)
 known as Tiny,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.


      Lawrence Robert Cortez appeals his sentence as a career offender. Mr.

Cortez contends he was not correctly classified as a career offender based on a

prior conviction for attempted cocaine trafficking because the Sentencing


      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent except under the doctrines of law of the case,
res judicata and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
Commission did not have statutory authority to include attempt crimes in its

definition of predicate offenses. We affirm.

      Pursuant to a plea agreement, Mr. Cortez pled guilty to superseding

informations in two cases, each of which charged him with conspiring to possess

and distribute cocaine. Following the recommendation of the presentence reports,

the district court found that Mr. Cortez met the criteria of a career offender under

U.S.S.G. § 4B1.1 based on prior convictions for aggravated battery and attempted

cocaine trafficking. Career offender status elevated Mr. Cortez’ criminal history

category from IV to VI. Mr. Cortez’ adjusted offense level was twenty-nine. On

the government’s motion, the district court departed downward to level twenty-

four based on Mr. Cortez’ substantial assistance. The resulting guideline range

for his sentence was 100 to 125 months. The court sentenced him to 100 months

in prison.

       The career offender guideline requires, among other things, that the

defendant have “at least two prior felony convictions of either a crime of violence

or a controlled substance offense.” U.S.S.G. § 4B1.1. Mr. Cortez asserts that his

conviction for attempted cocaine trafficking does not constitute a “controlled

substance offense.” However, the guidelines commentary explains that the

general definition of controlled substance offenses “include[s] the offenses of

aiding and abetting, conspiring, and attempting to commit such offenses.”


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U.S.S.G. § 4B1.2 comment. n. 1.

      Mr. Cortez argues that the Sentencing Commission had no statutory

authority to include attempt crimes in the definition of predicate offenses for

career offender status. We considered this question in United States v. Allen, 24

F.3d 1180 (10th Cir. 1994), holding that the statutory grant of authority contained

in 28 U.S.C. § 994(a) gave the Commission authority to include inchoate offenses

such as attempt and conspiracy in the career offender guideline. Id. at 1186. We

stated in Allen that “section 994(h) merely declares Congressional intent that the

crimes described therein must subject the convicted defendant to enhanced

penalties. Section 994(h) does not, by mandating enhancement for certain crimes,

preclude the Commission from enhancing others if it is within the Commission’s

grant of discretion to do so.” Id. (emphasis in original). Mr. Cortez

acknowledges our holding in Allen, but asks us to revisit the question in light of

the Supreme Court’s opinion in United States v. LaBonte, 520 U.S. 751 (1997).

      In LaBonte, the Court addressed the meaning of the term “maximum” in

section 994(h). The Commission had amended the definition of maximum to

mean the statutory maximum term before enhancements or adjustments. The

Court held that this amended definition conflicted with the plain language of the

statute. Id. at 757. Because Congress had instructed the Commission with the

unambiguous term “maximum,” the Commission could not redefine “maximum”


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to mean something less than its ordinary connotation required. To do so was

contrary to what Congress had unequivocally instructed the Commission to do.

By contrast, in this case as in Allen, the Commission’s amendment including

inchoate crimes as predicate offenses fulfills Congress’ mandate without conflict.

There is nothing in the enabling statute to preclude the Commission from

expanding the definition of a career offender. LaBonte is clearly distinguishable

from and not inconsistent with our holding in Allen. In the absence of a

superseding decision by the Supreme Court, one panel cannot overrule another

panel, so we decline to revisit Allen. See In re Smith, 10 F.3d 723, 724 (10th Cir.

1993) (per curiam).

          The Commission acted within its authority to include inchoate offenses as

predicates for career offender status. The district court properly counted Mr.

Cortez’ conviction for attempted cocaine trafficking toward his career offender

status.

          Accordingly, we AFFIRM.

                                         ENTERED FOR THE COURT

                                         Stephanie K. Seymour
                                         Circuit Judge




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