                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-31-1994

United States of America v. Hightower
Precedential or Non-Precedential:

Docket 93-5117




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994

Recommended Citation
"United States of America v. Hightower" (1994). 1994 Decisions. Paper 31.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/31


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                           No. 93-5117


                    UNITED STATES OF AMERICA

                               V.

                        KEVIN HIGHTOWER,
                                    Appellant


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW JERSEY
                (D.C. Criminal No. 92-00317-01)


           Submitted Under Third Circuit LAR 34.1(a)
                        October 8, 1993

     Before:   HUTCHINSON, COWEN and NYGAARD, Circuit Judges

                  (Opinion Filed May 31, 1994)


DAVID E. SCHAFER, ESQUIRE
Assistant Federal Public Defender
United States Courthouse
402 East State Street, Room 102A
Trenton, New Jersey 08608
Attorney for Appellant

MICHAEL CHERTOFF, ESQUIRE
EDNA B. AXELROD, ESQUIRE
R. DAVID WALK, JR., ESQUIRE
JOHN J. FARMER, JR., ESQUIRE
Office of United States Attorney
970 Broad Street
Room 502
Newark, New Jersey 07102
Attorneys for Appellee



                      OPINION OF THE COURT




                                1
NYGAARD, Circuit Judge.
          Kevin Hightower pleaded guilty to one count of

conspiracy to distribute cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1) and 846, and one count of possession of a firearm by

a felon, in violation of 18 U.S.C. § 922(g)(1).   The district

court sentenced him as a career offender to 21 years and 10

months of imprisonment, and Hightower appealed from his judgment

of conviction and sentence.    We affirmed, but later granted

rehearing to consider whether a defendant convicted of conspiracy

to distribute a controlled dangerous substance is subject to the

career offender provisions of the U.S. Sentencing Guidelines.1

Our review is plenary.    United States v. Parson, 955 F.2d 858,
863 (3d Cir. 1992).

                                 I.

          Section 4B1.1 of the Sentencing Guidelines classifies a

defendant as a career offender if:

1
  On appeal, Hightower argued that the district court erred
(1) in determining that his state court convictions were not
"related cases" for purposes of U.S.S.G. §4A1.2, (2) in deciding
not to reconsider his selective prosecution claim, and (3) in
declining to depart downward under U.S.S.G. §4A1.3. We
concluded, however, that these assertions were without merit. The
statement in the commentary to section 4A1.2 that prior sentences
separated by an intervening arrest are not considered related is
not "inconsistent with, or a plainly erroneous reading of, that
guideline," Stinson v. United States, 113 S. Ct. 1913, 1915
(1993); therefore, it is controlling, and Hightower's three
convictions following separate arrests are not related under
section 4A1.2. Assuming his second claim is timely and not
waived, the record below is insufficient to support a claim for
selective prosecution, and we lack jurisdiction to review
Hightower's third claim since the district court made a
discretionary decision not to depart under section 4A1.3. See
United States v. Frazier, 981 F.2d 92, 95-97 (3d Cir. 1992),
cert. denied, 113 S. Ct. 1661 (1993).


                                 2
          (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. §4B1.1.   The question before us involves the second

requirement, specifically, the scope of offenses that fall within

the category of a "controlled substance offense."2   The

commentary to section 4B1.1 states that:
          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. The legislative history of this
          provision suggests that the phrase "maximum term
          authorized" should be construed as the maximum term
          authorized by statute. . . .

U.S.S.G. §4B1.1, comment. (backg'd.) (emphasis added).     Based on

this commentary, Hightower maintains that the definition of a

controlled substance offense is circumscribed by the list of

offenses enumerated in "the statute," 28 U.S.C. § 994(h)(1)(B),

which does not include conspiracy to distribute a controlled

substance in violation of 21 U.S.C. § 846.

          Nevertheless, the commentary to section 4B1.1 also

states that a controlled substance offense is defined in section

4B1.2 which provides that:
          The term "controlled substance offense" means an
          offense under a federal or state law prohibiting the
          manufacture, import, export, distribution, or
          dispensing of a controlled substance (or a counterfeit
          substance) or the possession of a controlled substance

2
  Hightower was 24 years old at the time of this offense, and his
prior state court convictions for possession of a controlled
substance with intent to distribute satisfy the third
requirement.


                                3
          (or a counterfeit substance) with intent to
          manufacture, import, export, distribute, or dispense.

U.S.S.G. §4B1.2(2).   The commentary to section 4B1.2 expands the

definition to include "the offenses of aiding and abetting,

conspiring, and attempting to commit such offenses."     U.S.S.G.

§4B1.2, comment. (n.1).   Conspiracy to distribute a controlled

substance is thus included as a predicate offense for sentencing

under the career offender provisions of the Sentencing

Guidelines.   The question then becomes whether the Sentencing

Commission exceeded its statutory authority by expanding the

definition of a "controlled substance offense" beyond those

offenses specifically listed in 28 U.S.C. § 994(h)(2)(B).

                                II.

          Unlike the guidelines themselves or policy statements,

the commentary is not directly authorized in the Sentencing

Reform Act of 1984.   See Stinson, 113 S. Ct. at 1917; 28 U.S.C.
§§ 994(a)(1)-(2); U.S.S.G. Ch.1, Pt.A, §1.   In Stinson v. United

States, 113 S. Ct. 1913 (1993), however, the Supreme Court

addressed "the authoritative weight to be accorded to the

commentary to the Sentencing Guidelines."    Id. at 1916.   Using

the analogy of "an agency's interpretation of its own legislative

rule," id. at 1919, the Stinson Court asserted that:

          [C]ommentary 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.



                                4
Id. at 1915; see also United States v. Joshua, 976 F.2d 844, 855

(3d Cir. 1992) (comparing Sentencing Commission's commentary to

administrative agency's interpretation of an ambiguous statute).

            Section 1B1.7 of the Sentencing Guidelines attributes

the commentary with three different functions:
          First, it may interpret the guideline or explain how it
          is to be applied. Failure to follow such commentary
          could constitute an incorrect application of the
          guidelines, subjecting the sentence to possible
          reversal on appeal. See 18 U.S.C. § 3742. Second, the
          commentary may suggest circumstances which, in the view
          of the Commission, may warrant departure from the
          guidelines. Such commentary is to be treated as the
          legal equivalent of a policy statement. Finally, the
          commentary may provide background information,
          including factors considered in promulgating the
          guideline or reasons underlying promulgation of the
          guideline. As with a policy statement, such commentary
          may provide guidance in assessing the reasonableness of
          any departure from the guidelines.

U.S.S.G. §1B1.7.    The commentary at issue in Stinson was
"interpretive and explanatory" of a portion of the career

offender guideline and thus was controlling.    See 113 S. Ct. at

1917-18.3

                                III.
                                 A.

            In this case, the statutory provision referred to in

the commentary, 28 U.S.C. § 994(h), provides that:
            (h) The Commission shall assure that the guidelines
          specify a sentence to a term of imprisonment at or near
          the maximum term authorized for categories of
          defendants in which the defendant is eighteen years old
          or older and--
                 (1) has been convicted of a felony that is--

3
  The Stinson Court held that the commentary excluding unlawful
possession of a firearm by a felon as a predicate offense under
the career offender guideline was binding. Id. at 1920.


                                 5
                         (A) a crime of violence; or
                         (B) an offense described in section 401 of
                       the Controlled Substances Act (21 U.S.C.
                       841), sections 1002(a), 1005, and 1009 of the
                       Controlled Substances Import and Export Act
                       (21 U.S.C. 952(a), 955, and 959), and section
                       1 of the Act of September 15, 1980 (21 U.S.C.
                       955a); and
                    (2) has previously been convicted of two or more
                  prior felonies, each of which is--
                         (A) a crime of violence; or
                         (B) an offense described in section 401 of
                       the Controlled Substances Act (21 U.S.C.
                       841), sections 1002(a), 1005, and 1009 of the
                       Controlled Substances Import and Export Act
                       (21 U.S.C. 952(a), 955, and 959), and section
                       1 of the Act of September 15, 1980 (21 U.S.C.
                       955a).

The plain language of the statute thus requires the Sentencing

Commission to assure that certain offenders receive maximum or

near-maximum terms of imprisonment.     The problem is that a

"controlled substance offense" is not explicitly defined in

§ 994(h)(1)(B).

          The legislative history states that the intent of

§ 994(h) was to impose "substantial prison terms . . . on repeat

violent offenders and repeat drug traffickers."    S. Rep. No. 225,

98th Cong., 2d Sess. 175 (1983), reprinted in 1984 U.S.C.C.A.N.

3182, 3358; see also United States v. Whyte, 892 F.2d 1170, 1174

(3d Cir. 1989).     Furthermore, the Senate Report states that

subsection (h) is "not necessarily intended to be an exhaustive

list of types of cases in which . . . terms at or close to

authorized maxima should be specified."     S. Rep. No. 225, 98th

Cong., 2d Sess. 176 (1983), reprinted in 1984 U.S.C.C.A.N. 3182,

3359; see also Parson, 955 F.2d at 867.




                                  6
                                 B.

          We have held that state court convictions can serve as

controlled substance offenses under the career offender

guideline, and that the Sentencing Commission has the authority

to expand the scope of crimes of violence beyond the original

congressional definition.    In United States v. Whyte, 892 F.2d

1170 (3d Cir. 1989), the defendant contended that, for purposes

of the career offender guideline, controlled substance offenses

were limited to the federal statutes listed in 28 U.S.C. § 994(h)

and did not include "convictions obtained under similar or

analogous state statutes."    Id. at 1174.   Whyte rejected this

argument, surmising that:
          If Congress had wanted only convictions under
          particular federal statutes to serve as predicate
          offenses, it could have said so quite simply. Instead,
          Congress referred to 'offenses described in' -- not
          'convictions obtained under' -- those statutes.

Id.   Additionally, the court reasoned that the purpose underlying

§ 994(h) and the possibility of prosecution under 21 U.S.C. § 841

for the same conduct weighed in favor of counting the defendant's

state convictions towards career offender status.     Id.   In United

States v. Parson, 955 F.2d 858 (3d Cir. 1992), we concluded that

§ 994(h) served "as a floor for the career offender category, not

as a ceiling," id. at 867, and that § 994(h) did not bar the

Sentencing Commission from including additional predicate

offenses within the guideline definition of crimes of violence.

          The Commission's authority to implement sentencing

policy through the guidelines, however, is not coextensive with

its authority to do so through commentary.     As discussed above,


                                 7
the function of commentary is to (1) explain or interpret the

guidelines, (2) suggest circumstances warranting departure from

the guidelines and (3) provide background information on the

guidelines.   In contrast, "[t]he guidelines provide direction as

to the appropriate type of punishment -- probation, fine, or term

of imprisonment -- and the extent of the punishment imposed."

Stinson, 113 S. Ct. at 1917.   If "commentary and the guideline it

interprets are inconsistent[,] . . . the Sentencing Reform Act

itself commands compliance with the guideline."   Id. at 1918

(citing 18 U.S.C. §§ 3553(a)(4), (b)); accord United States v.

Vea-Gonzales, 999 F.2d 1326, 1330 (9th Cir. 1993); United States

v. Mandarelli, 982 F.2d 11, 13 (1st Cir. 1992).   The Supreme

Court explained in Stinson that:
          Although amendments to guidelines provisions are one
          method of incorporating revisions, another method open
          to the Commission is amendment of the commentary, if
          the guideline which the commentary interprets will bear
          the construction. Amended commentary is binding on the
          federal courts even though it is not reviewed by
          Congress, and prior judicial constructions of a
          particular guideline cannot prevent the Commission from
          adopting a conflicting interpretation that satisfies
          the standard we set forth today.
113 S. Ct. at 1919 (emphasis added).

                                C.

          Although we have not addressed the question presented

in this appeal,4 other courts of appeals have, reaching differing


4
  In United States v. Preston, 910 F.2d 81 (3d Cir. 1990), cert.
denied, 498 U.S. 1103, 111 S. Ct. 1002 (1991), we stated that
"'crimes of violence' include the offenses of aiding and
abetting, conspiring, and attempting to commit such offenses."
Id. at 86 n.6. However, that case involved the Career Criminals
Amendment Act, 18 U.S.C. § 924(e), not section 4B1.2 of the


                                8
results.   In United States v. Price, 990 F.2d 1367 (D.C. Cir.

1993), the court analyzed the applicability of the career

offender provisions to a conviction for conspiracy to commit an

offense against the United States in violation of 18 U.S.C.

§ 371.   The Price court asserted that:
           Price clearly qualified as such [a career offender]
           under the definitions supplied by § 4B1.2 of the
           Guidelines and its Application Notes. However, because
           the Sentencing Commission adopted §§ 4B1.1 & 4B1.2
           solely in an effort to fulfill the mandate of 28 U.S.C.
           § 994(h), and § 994(h) plainly fails to reach
           conspiracies to commit controlled substance crimes, we
           vacate the sentence and remand the case to the district
           court for resentencing.

Id. at 1368.   Although some courts had accepted without comment

the commentary's inclusion of conspiracy as a controlled

substance offense,5 the Price court concluded that the Commission

had fashioned the career offender provisions "solely as an

implementation of § 994(h)," and "acted explicitly upon grounds

that do not sustain its action."    990 F.2d at 1369-70.


Sentencing Guidelines, and the Preston court's interpretation of
the guidelines was dictum.
5
  See, e.g., United States v. Whitaker, 938 F.2d 1551, 1552 (2d
Cir. 1991) (conviction for drug conspiracy in violation of 21
U.S.C. § 846), cert. denied, 112 S. Ct. 977 (1992); United States
v. Jones, 898 F.2d 1461, 1462 (10th Cir.) (same), cert. denied,
498 U.S. 838, 111 S. Ct. 111 (1990). We note that other courts
have simply relied on the commentary as support for including
conspiracy and attempt as crimes of violence under the career
offender guideline. See, e.g., United States v. Carpenter, 11
F.3d 788, 791 (8th Cir. 1993) ("We hold that under the Guidelines
an attempt is the same as the commission of the substantive
offense."); United States v. Fiore, 983 F.2d 1, 4 (1st Cir. 1992)
("conspiracy convictions can serve as predicate offenses under
the career offender provisions of the federal sentencing
guidelines"), cert. denied, 113 S. Ct. 1830 (1993); United States
v. Guerra, 962 F.2d 484, 487 (5th Cir. 1992) ("we should not
deviate from a plain reading of the guidelines and their official
commentary").


                                9
Recognizing that the Commission may have discretionary authority

under 28 U.S.C. § 994(a) to specify long terms of imprisonment

for defendants not specifically covered under § 994(h), the Price

court nevertheless held that the commentary to section 4B1.1 was

"beyond the Commission's authority under § 994(h)."      Id. at 1369.

          In United States v. Heim, 15 F.3d 830 (9th Cir. 1994),

however, the court explicitly held that "the Sentencing

Commission did not exceed its statutory authority in including

conspiracy within the definition of 'controlled substance

offense' in §§ 4B1.1 and 4B1.2."     Id. at 832.   The Heim court's

reasoning was twofold.   First, it noted that "[n]owhere in the

commentary to § 4B1.1 does the Commission suggest that it

considered § 994(h) to be the sole legal authority for

promulgating the career offender guidelines."      Id. at 832

(emphasis added).6   Second, the Heim court asserted that "[t]he

Commission's decision to go beyond the mandate of § 994(h) is

also consistent with the legislative history to § 994(h)."      15

F.3d at 832.

          In United States v. Baker, 16 F.3d 854 (8th Cir. 1994),

the court agreed that "§ 994(h) 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

6
  See also United States v. Mayes, No. 93-3342, 1994 WL 59469, at
*2 (D. Kan. Feb. 15, 1994) ("mere mention of section 994(h), by
way of commentary to section 4B1.1, does not make section 994(h)
the sole authority relied upon by the Commission"); cf. Parson,
955 F.2d at 867 (suggesting in dicta that Commission could rely
on other statutory provisions besides § 994(h) as authority for
the career offender guideline); Whyte, 892 F.2d at 1174 n.11
(same).


                                10
treated."   Id. at 857.     The Baker court also expressed "serious

doubts about Price's conclusion, derived solely from the

commentary, that the only purpose of the career offender

Guideline was to implement § 994(h)."     Id.   Finally, in United

States v. Liranzo, 944 F.2d 73 (2d Cir. 1991), the court held

that the defendant's prior conviction for the attempted criminal

possession of cocaine was a controlled substance offense under

the "plain language" of the commentary to section 4B1.2 of the

guidelines.    Id. at 78.

                                   D.

            We think that the commentary's expansion of the

definition of a controlled substance offense to include inchoate

offenses is not "inconsistent with, or a plainly erroneous

reading of" section 4B1.2(2) of the Sentencing Guidelines, and

that it does not "violate[] the Constitution or a federal

statute."   Stinson, 113 S. Ct. at 1915.     This commentary explains

how the guideline should be applied, and we therefore hold that

it is binding.   The commentary to section 4B1.1, however, is not

explanatory or interpretive; rather, this commentary simply

provides background information on the career offender guideline.

We decline to interpret the commentary to section 4B1.1 in a way

that is contrary to the text and legislative history of 28 U.S.C.

§ 994(h), and which would nullify the commentary to section

4B1.2.



                                  IV.



                                   11
          For all these reasons, we will affirm Hightower's

judgment of conviction and sentence.




                               12
