                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-18-1999

USA v. Williams
Precedential or Non-Precedential:

Docket 97-5465




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Recommended Citation
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Filed May 17, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-5465

UNITED STATES OF AMERICA

v.

ABDUL WILLIAMS,

Appellant

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

Argued: April 6, 1999

Before: SLOVITER and ALITO, Circuit Judges, and
ALARCON, Senior Circuit Judge*

(Opinion Filed: May 17, 1999)

Tonianne J. Bongiovanni
Chester M. Keller (argued)
Office of Federal Public Defender
972 Broad Street
Newark, NJ 07102

 Attorney for Appellant



_________________________________________________________________

*The Honorable Arthur L. Alarcon, United States Senior Circuit Judge
for the Ninth Circuit, sitting by designation.
       George S. Leone (argued)
       Office of United States Attorney
       970 Broad Street
       Newark, NJ 07102

        Attorney for Appellee

OPINION OF THE COURT

ALITO, Circuit Judge:

Abdul Williams appeals his conviction and sentence in a
criminal case. He argues that the District Court erroneously
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
purchasing heroin with intent to distribute, in violation of
21 U.S.C. S 841(a)(1) and 18 U.S.C. S 2. He subsequently
entered 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. S 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 S 4B1.1 of the United States Sentencing
Guidelines ("U.S.S.G.").1 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 convictions
for "controlled substance offense[s]."
_________________________________________________________________

1. Except where indicated otherwise, all references are to the Sentencing
Guidelines in effect on July 17, 1997--the day Williams was sentenced.

                                2
Williams challenged only the second of these assertions,
arguing that his conviction under S 843(b) did not qualify as
a "controlled substance offense" for purposes of
determining career offender status under U.S.S.G. S 4B1.1.
The District Court rejected this argument, concluding that
Williams had committed a "controlled substance offense"
and was therefore a career offender for purposes of
U.S.S.G. S 4B1.1. Accordingly, the District Court sentenced
him to a 92 month term of imprisonment.

Williams appealed the District Court's decision to
sentence 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).

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

U.S.S.G. S 4B1.1. Williams does not dispute that he was at
least 18 years old at the time of the instant offense; nor
does he deny having received at least two prior felony
convictions for controlled substance offenses. See Br. for
Appellant at 11 ("[I]t is undisputed that thefirst and third
prongs are met."). Accordingly, the only question before us
is whether Williams's 21 U.S.C. S 843(b) conviction can be
considered a "controlled substance offense" for purposes of
U.S.S.G. S 4B1.1.

Williams raises two arguments in support of his
contention that it cannot. First, he argues that"the plain
language of [U.S.S.G. S 4B1.2] and its commentary
demonstrate that . . . a conviction [under S 843(b)] is not"
a "controlled substance offense" for purposes of

                                3
determining 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 discussed below, we disagree.

A. The Guidelines define a "controlled substance offense"
as "an offense under a federal or state 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." U.S.S.G. S 4B1.2(2)
(emphasis added). Thus, a crime constitutes a "controlled
substance offense" if the law creating it prohibits at least
one of the activities enumerated in S 4B1.2(2).2 Id.

Therefore, we must determine whether S 843(b) prohibits
at least one of the activities enumerated in S 4B1.2(2).
Section 843(b) provides that

       It shall be unlawful for any person knowingly or
       intentionally to use any communication facility in
       committing or in causing or facilitating the commission
       of any acts constituting 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. S 843(b). Many of the provisions referenced in
S 843(b) prohibit "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."
U.S.S.G. S 4B1.2(2). See e.g., 21 U.S.C. S 841(a) (prohibiting
the manufacture, distribution, and dispensing of controlled
substances, and possession of controlled substances with
_________________________________________________________________

2. Because inchoate drug crimes are "offense[s] 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 considered "controlled substance offenses." U.S.S.G.
S 4B1.2 Commentary, Application Note 1 ("The term[ ] . . . `controlled
substance offense' include[s] aiding and abetting, conspiring, and
attempting to commit such offenses."). Id.

                               4
intent to distribute); 21 U.S.C. S 952 (prohibiting the
importation of controlled substances); 21 U.S.C. S 953
(prohibiting the export of controlled substances).
Consequently, many of the offenses that can give rise to a
S 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." U.S.S.G. S 4B1.2(2). See e.g., 21 U.S.C. S 841(b)
(prescribing penalties for the manufacture, distribution,
and dispensing of controlled substances, and for possession
of controlled substances with intent to distribute); 21
U.S.C. S 960 (prescribing penalties for the unlawful import
and export of controlled substances); see also United States
v. Johnstone, 856 F.2d 539, 543 (3d Cir. 1988) ("The
occurrence of [an] underlying drug felony is a fact
necessary to finding a violation of S 843(b)."). Where such
an offense provides the basis for a particular S 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 controlled substance . . . with
intent to manufacture, import, export, distribute, or
dispense." U.S.S.G. S 4B1.2(2).

Stated differently, where a particular S 843(b) conviction
establishes that the defendant "committ[ed]," "caus[ed]," or
"facilitat[ed]" one of the acts enumerated in S 4B1.2(2), that
conviction qualifies as a "controlled substance offense" for
purposes of determining career offender status. 3 The three
_________________________________________________________________

3. We avoid concluding that all S 843(b) convictions are "controlled
substance offense[s]" because a defendant could be convicted under
S 843(b) without engaging in any of the activities enumerated in
S 4B1.2(2). For example, in certain circumstances, the mere possession
of a controlled substance can be considered a felony under 21 U.S.C.
S 844(a). 21 U.S.C. S 844(a) ("[I]f [a person] commits [the] offense[of
possession of a controlled substance] after a prior conviction or
convictions 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 S 843(b) for using a
telephone to facilitate the mere possession of a controlled substance.

                               5
Courts of Appeals that have confronted this issue have
reached similar conclusions.4 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. S 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-Gonzalez, 999 F.2d 1326, 1329 (9th
Cir. 1992) ("[B]ecause 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 S 843(b) is a "felony drug offense" under 21
U.S.C. S 841(b)(1)(B)(viii) because it "prohibits drug
distribution").

The offense underlying Williams's S 843(b) conviction was
_________________________________________________________________

Such a conviction would not constitute a "controlled substance offense"
because 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, distribute, or dispense."
U.S.S.G. S 4B1.2(2).

4. We are not aware of a single instance in which a court has concluded
that a S 843(b) conviction cannot qualify as a"controlled substance
offense" for purposes of determining career offender status. Aware of the
dearth of case law supporting his argument, Williams cites several cases
involving crimes that clearly do not constitute "controlled substance
offense[s]." See United States v. Dolt, 27 F.3d 235 (6th Cir. 1994)
(concluding that a conviction under Florida's solicitation statute did not
qualify as a "controlled substance offense"); United States v. Baker, 16
F.3d 854 (8th Cir. 1994) (concluding that a conviction under 21 U.S.C.
S 856 was not a "controlled substance offense" where the underlying
offense was mere possession of a controlled substance); United States v.
Wagner, 994 F.2d 1467 (10th Cir. 1993) (concluding that possession of
a precursor chemical with intent to manufacture a controlled substance
was not a "controlled substance offense"); United States v. Liranzo, 944
F.2d 73 (2d Cir. 1991) (concluding that a conviction under New York's
criminal facilitation statute did not qualify as a"controlled substance
offense"). Because these cases do not pertain toS 843(b) convictions,
they do not advance Williams's argument.

                               6
the distribution of heroin in violation of 21 U.S.C.S 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 S 841(a)
is "an offense under a . . . law prohibiting the . . .
distribution . . . of a controlled substance . . . ." U.S.S.G.
S 4B1.2(2). Williams's S 843(b) conviction must therefore be
considered a "controlled substance offense" for purposes of
determining career offender status.

B. In the alternative, Williams argues that S 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
(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
S 4B1.2(2), "the rule of lenity does not apply." United States
v. Johnson, 155 F.3d 682, 685 (3d Cir. 1998).

Moreover, even if we were to conclude that the
Sentencing Guidelines' definition of "controlled substance
offense" was ambiguous, we would still be compelled to
affirm. Several months after Williams was sentenced, the
Sentencing Commission amended the commentary to
S 4B1.2.5 As amended, the commentary resolves any
ambiguity that may have existed when Williams was
sentenced, explaining that

       Using a communications facility in committing,
       causing, or facilitating a drug offense (21 U.S.C.
       S 843(b)) is a "controlled substance 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. S 4B1.2 Commentary,
Application Note 1)("Amendment 568").
_________________________________________________________________

5. Williams was sentenced on July 14, 1997. The amendment became
effective November 1, 1997.

                                7
It is beyond dispute that the offense underlying
Williams's S 843(b) conviction was the distribution of heroin
in violation of 21 U.S.C. S 841. Without question, the
distribution of heroin is a "controlled substance offense."
Therefore, if we give Amendment 568 retrospective effect,
we must affirm.

Williams argues that because Amendment 568 became
effective after he was sentenced, "it has no application to
this appeal except to show that it was not at all clear at the
time he was sentenced that [a S 843(b) conviction]" could be
considered a "controlled substance offense." Br. for
Appellant at 9, n.5. We reject this argument 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 constructions 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 "clarif[ying]" S 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 conclude
that the Sentencing Guidelines' definition of"controlled
substance offense" was ambiguous when Williams was
sentenced, we would still affirm.

III.

For the foregoing reasons, we affirm.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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