
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No.  94-1197                               UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                     DAVID PIPER,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                            Selya and Cyr, Circuit Judges,                                           ______________                             and Zobel,* District Judge.                                         ______________                                 ____________________               Peter Clifford, for appellant.               ______________               Michael M. DuBose,  Assistant United  States Attorney,  with               _________________          whom  Jay P. McCloskey, United States Attorney, was on brief, for                ________________          appellee.                                 ____________________                                  September 8, 1994                                 ____________________          __________          *Of the District of Massachusetts, sitting by designation.                    SELYA, Circuit Judge.  This appeal asks us to  revisit,                    SELYA, Circuit Judge.                           _____________          in a  slightly altered form,  the question of  whether conspiracy          convictions qualify as  triggering and/or predicate offenses  for          purposes  of  the  career  offender  provisions  of  the  federal          sentencing guidelines.1  This question has divided  the courts of          appeals.    On reflection,  we adhere  to  the majority  view and          continue to treat certain conspiracy convictions as includable in          determining career  offender status.  Because  the district court          took this (legally proper) approach, and because appellant's only          non-sentence-related assignment of error is impuissant, we affirm          the judgment below.          I.  BACKGROUND          I.  BACKGROUND                    On September  2, 1993, in proceedings  pursuant to Fed.          R. Crim. P. 11, defendant-appellant David Piper waived indictment          and pleaded guilty  to a two-count information  charging him with          conspiracy  to  possess  with   intent  to  distribute  over  100          kilograms of marijuana, see 21 U.S.C.    841(a)(1), 841(b)(1)(B),                                  ___          846,  and using or carrying a firearm  in connection with a drug-          trafficking crime, see 18 U.S.C.   924(c).  On February 23, 1994,                             ___          the  district court imposed a 25-year prison sentence on count 1,          terming  Piper a career offender.  The court also sentenced Piper                                        ____________________               1The career offender guideline applies to an adult defendant          who commits a  felony "that is  either a crime  of violence or  a          controlled  substance offense,"  having  previously incurred  "at          least  two prior felony convictions of either a crime of violence          or a controlled substance  offense." U.S.S.G.  4B1.1 (Nov. 1993).          We  sometimes  call the  offense  of  conviction the  "triggering          offense" in contradistinction to the "predicate offenses,"  i.e.,                                                                      ____          the prior felony convictions.                                          2          to an incremental 5-year prison term on the weapons charge.                    Piper appeals, alleging error in both the acceptance of          his guilty  plea  and  the  application of  the  career  offender          guideline.          II.  THE RULE 11 CHALLENGE          II.  THE RULE 11 CHALLENGE                    Appellant's initial claim of  error need detain us only          in the respect that  it requires us to  make clear that  specific          intent to  effectuate an underlying substantive  offense, and not          an  intent to commit the substantive offense oneself, is all that          is necessary to sustain a conspiracy conviction.  Before reaching          this   vexing   point,   we   first   dispatch   some   necessary          preliminaries.                    Although  Piper  now contends  that the  district court          erred in accepting a plea to the information, he did  not seek to          withdraw  his plea below.   Consequently, he can  prevail on this          afterthought ground only if  he demonstrates a substantial defect          in the Rule 11  proceeding itself.   See United States v.  Mateo,                                               ___ _____________     _____          950 F.2d 44, 45  (1st Cir. 1991); United States  v. Parra-Ibanez,                                            _____________     ____________          936  F.2d 588, 593-94 (1st  Cir. 1991).   Appellant's attempts to          meet this exacting standard lack force.                    Appellant  advances three main  arguments in support of          this  assigned error,2  each of  which centers  around the  drug-          trafficking  count.   He  asserts  that  the district  court  (1)                                        ____________________               2Grasping at  straws, appellant suggests a  variety of other          ways  in which  he deems the  Rule 11  proceeding flawed.   These          suggestions range from the  jejune to the frivolous.   None merit          discussion.                                          3          mischaracterized the nature and  elements of the offense, thereby          frustrating his ability to understand the charge to which he pled          guilty, in derogation of Fed. R. Crim. P. 11(c)(1); (2) failed to          ensure  that his  plea was  voluntary, in  derogation of  Fed. R.          Crim. P.  11(d); and (3) accepted his plea despite the lack of an          adequate factual basis, in derogation of Fed. R. Crim. P. 11(f).                    We have  inspected the plea colloquy  with care, tested          it in the crucible of Rule  11, see, e.g., Parra-Ibanez, 936 F.2d                                          ___  ____  ____________          at 590  (explaining that  the "strictures  of Rule 11  . .  . are          calculated to  insure the voluntary and  intelligent character of          the  plea"); United States v. Allard, 926 F.2d 1237, 1244-45 (1st                       _____________    ______          Cir. 1991)  (identifying  core  Rule  11 concerns:    absence  of          coercion, understanding of charges, and knowledge of consequences          of guilty plea), and find no hint of any mischaracterization.  To          the precise contrary, the  lower court proceeded in a  meticulous          fashion  to  ensure that  appellant  understood the  gist  of the          information.    A   judge's  responsiveness   to  a   defendant's          articulated  concerns   is  of   great  importance  in   Rule  11          proceedings.   See, e.g., United States v. Buckley, 847 F.2d 991,                         ___  ____  _____________    _______          999  (1st  Cir.  1988)  (explaining need  for  court  to  respond          appropriately   to   defendant's   questions  at   change-of-plea          hearing),  cert. denied, 488 U.S.  1015 (1989).   Here, the judge                     _____ ______          not only fulfilled  the core  requirements of Rule  11, but  also          furnished  suitably detailed  explanations when  appellant sought          clarification of certain  points.  And,  moreover, the record  is          replete with  indications that appellant  understood the charges,                                          4          faced up to them, and chose voluntarily to plead guilty.                    We  need not paint the  lily.  An  appellate court must          read the transcript of  a Rule 11 colloquy with  practical wisdom          as  opposed  to pettifoggery.    See  United  States  v.  Medina-                                           ___  ______________      _______          Silverio,  ___ F.3d ___, ___  (1st Cir. 1994)  [No. 93-1800, slip          ________          op.  at  15] (emphasizing  that there  is  no "formula  of 'magic          words' in meeting the requirements of Rule 11"]; Allard, 926 F.2d                                                           ______          at  1245 (similar); see also  Fed. R. Crim.  P. 11(h) (explaining                              ___ ____          that,  to  warrant  vacation,  irregularities  in  a  plea-taking          proceeding  must  affect the  defendant's  "substantial rights").          Viewed from that perspective, appellant's first two arguments are          meritless.   The district  court's performance in  explaining the          charges and ensuring that defendant understood them easily passes          muster under Rule 11(c) and (d).  The plea was voluntary.                    The  third prong  of  appellant's  assignment of  error          requires  special mention,  for the  argument advanced  indicates          some confusion over what proof is required in order  to sustain a          conspiracy  conviction.   Appellant's  thesis is  that, while  he          agreed to help steal the marijuana, he did not have  an intent to          distribute it himself,  and, thus,  could not be  guilty of  (and          could not validly plead guilty to) the conspiracy charge.                    This thesis  does  not  receive a  passing  grade.    A          specific  intent to distribute  drugs oneself is  not required to          secure  a  conviction  for  participating in  a  drug-trafficking          conspiracy.  This  conclusion is  neither new nor  original.   In          United States v. Rivera-Santiago, 872 F.2d 1073 (1st Cir.), cert.          _____________    _______________                            _____                                          5          denied,  492  U.S.  910  &  493  U.S.  832  (1989),  we  upheld a          ______          conviction  for  conspiracy  to  distribute  marijuana  based  on          evidence  that the defendant had agreed to store a large quantity          of  the drug  in  his house,  even  though no  evidence  had been          adduced that he intended to play a role in its distribution.  See                                                                        ___          id. at 1081.  In the process, we explained that:          ___                    an individual could be found to  be part of a                    conspiracy   to    possess   and   distribute                    [marijuana] even though  he neither  directly                    participated  in  interstate trafficking  nor                    knew  the precise  extent of  the enterprise.                    The  fact that he  participated in one  . . .                    link  of the distribution chain, knowing that                                                     ____________                    it extended  beyond his individual  role, was                    ________________________________________                    sufficient.          Id. at 1079 (emphasis supplied).          ___                    Any confusion in this  area of the law may arise from a          possible ambiguity  in  certain of  our  earlier decisions.    In          Rivera-Santiago,  for  example,  we   stated,  in  the  paragraph          _______________          immediately preceding the language quoted above, that "[i]n order          to  prove  that a  defendant belonged  to  and participated  in a          conspiracy, the government must prove two kinds of intent; intent          to agree and intent to commit the substantive offense."  Id. This                                                                   ___          "double  intent" formulation neither  began with Rivera-Santiago,                                                           _______________          see, e.g.,  United States  v. Drougas, 748  F.2d 8, 15  (1st Cir.          ___  ____   _____________     _______          1984), nor ended  there, see, e.g., United States v. Mena-Robles,                                   ___  ____  _____________    ___________          4 F.3d  1026, 1031 (1st Cir. 1993), cert. denied, 114 S. Ct. 1550                                              _____ ______          (1994);  United  States v.  Nueva, 979  F.2d  880, 884  (1st Cir.                   ______________     _____          1992),  cert. denied, 113 S. Ct. 1615  (1993).  Insofar as we can                  _____ ______          determine, the formulation made its First Circuit debut in United                                                                     ______                                          6          States v. Flaherty, 668 F.2d 566 (1st Cir. 1981), where the panel          ______    ________          stated that "[t]wo  types of  intent must be  proved:  intent  to          agree and intent to commit the substantive offense."  Id. at 580.                                                                ___          For  this proposition  the panel  cited United  States  v. United                                                  ______________     ______          States  Gypsum Co.,  438  U.S.  422  (1978).    But  Gypsum  says          __________________                                   ______          something slightly different:   "[i]n a conspiracy, two different          types  of intent  are generally  required    the basic  intent to          agree .  . . and  the more  traditional intent to  effectuate the                                                  _________________________          object  of the  conspiracy."   (emphasis supplied).   Id.  at 444          __________________________                            ___          n.20.    Though  slight,  the  difference  is  important.     Its          significance comes into focus in the case before us.                    Perhaps the best way to illustrate the difference is by          asking  a  question:    does  one  who  intentionally  agrees  to          undertake activities  that facilitate commission of a substantive          offense, but who does  not intend to commit the  offense himself,          have  the  requisite  intent   to  be  convicted  of  conspiracy?          According  to a literal reading of  Flaherty   a reading which we                                              ________          are  sure the  Flaherty court  never intended  and which,  to our                         ________          knowledge,  has  never been  implemented  in this  circuit    the          answer to  the question would be  in the negative.   Under such a          reading,  a  defendant  must  have  the  "intent  to  commit  the          substantive  offense" in order to ground a conviction.  But under          Gypsum, by contrast, the answer to the question is plainly in the          ______          affirmative,  for  our   hypothetical  defendant  "inten[ded]  to          effectuate the object of the conspiracy."                    Gypsum's formulation not only  makes good sense, but it                    ________                                          7          is  also good  law.  In  practice, our  cases have  hewed to that          line.    See,  e.g.,  Rivera-Santiago, supra;  United  States  v.                   ___   ____   _______________  _____   ______________          Moosey,  735   F.2d  633,  635-36  (1st   Cir.  1984)  (upholding          ______          conviction  for conspiracy even  though defendant  personally had          not intended  to,  and did  not,  participate in  the  underlying          substantive offense of interstate trafficking).                    We   conclude,  therefore,  that  the  "double  intent"          language contained  in Flaherty and its  progeny, correctly read,                                 ________          merely rehearses  the Gypsum  formulation, and requires  that the                                ______          government prove an intent  to agree and an intent  to effectuate          the  commission of the substantive offense.  A defendant need not          have had the intent personally to commit the substantive crime.                    Here, the  record shows  beyond  hope of  contradiction          that appellant, whether or not he meant personally to participate          in  the distribution  of  the  contraband, nonetheless  knowingly          assisted  in   its  asportation,  with  foreknowledge   that  the          conspiracy  extended beyond the theft to the eventual disposal at          some later  date of  the purloined  marijuana (totaling  over 145          kilograms).  He thus possessed the requisite mens rea.                                                       ____ ___                    That ends the matter.   Though a district court  has an          unflagging  obligation to  assure  itself that  a guilty  plea is          grounded  on an  adequate factual  foundation, see,  e.g., United                                                         ___   ____  ______          States v. Ruiz-Del Valle, 8 F.3d 98, 102 (1st Cir. 1993), it need          ______    ______________          not gratuitously  explore points removed from the elements of the          offense.  Because an adequate factual  basis existed to undergird          appellant's plea, his assignment of error collapses.                                          8          III.  THE CAREER OFFENDER CHALLENGE          III.  THE CAREER OFFENDER CHALLENGE                    We now reach  the heart  of the appeal.   We choose  to          present our analysis in four segments.  First,  we set the stage.          Second, we address the status of conspiracy convictions under the          career  offender guideline.   Next, we consider  the propriety of          including  state  narcotics  convictions as  predicate  offenses.          Finally, we confront appellant's constitutional challenge.                               A.  Setting the Stage.                                 A.  Setting the Stage.                                   _________________                    The career offender guideline provides that 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  felony                    convictions of  either a crime of violence or                    a controlled substance offense.          U.S.S.G.  4B1.1 (Nov.  1993).  An associated  guideline defines a          "controlled substance offense" for  all pertinent purposes as "an          offense under a federal or state law prohibiting the manufacture,          import,  export,  distribution,  or dispensing  of  a  controlled          substance  . .  .  with intent  to  manufacture, import,  export,          distribute, or dispense."  U.S.S.G.  4B1.2(2).  To elucidate this          definition, the Sentencing Commission devised Application Note 1.          The note  instructs readers  that the term  "controlled substance          offense"   includes  "the   offenses  of  aiding   and  abetting,          conspiring, and  attempting to  commit such offenses."   U.S.S.G.           4B1.2, comment. (n.1).                    When  appellant appeared  for sentencing,  the district                                          9          court, relying on United  States v. Fiore,  983 F.2d 1 (1st  Cir.                            ______________    _____          1992), cert. denied, 113 S.  Ct. 1830 (1993), invoked Application                 _____ ______          Note  1 and determined that  the instant offense  of conviction            conspiracy  to  possess  with   intent  to  distribute  over  100          kilograms  of  marijuana     constituted  a  controlled substance          offense  for  purposes  of   U.S.S.G.   4B1.1.    The  conviction          therefore triggered consideration of the career offender regime.                                This  step   spelled  trouble   for  appellant.     The          presentence investigation report reflected that he previously had          racked up eleven  adult criminal convictions.   The judge counted          two  of  them    a  1980  state court  conviction  for  selling a          controlled substance (PCP), and a 1985 state court conviction for          possession of cocaine with intent  to distribute   as  comprising          the  predicate  offenses  needed  to bring  the  career  offender          guideline  to  bear.  Hence, the  court  imposed  a much  stiffer          sentence    25 years   than the offense of conviction, taken in a          vacuum, otherwise would have generated.                         B.  Conspiracies As Covered Offenses                         B.  Conspiracies As Covered Offenses                             ________________________________                    Appellant  challenges the district  court's ruling that          his  conspiracy conviction  qualifies as  a  controlled substance          offense.3  Because this  challenge hinges on the legal  effect of                                        ____________________               3In this  case the  lower  court ruled  that the  conspiracy          conviction constituted  a triggering offense.   We note, however,          that the relevant definitions  are substantially identical,  and,          therefore, answering the question  of whether a conspiracy charge          can constitute  a triggering offense  for purposes of  the career          offender guideline necessarily answers the analogous question  of          whether  a  conspiracy  conviction  can  constitute  a  predicate                                          10          the conviction, our review is plenary.  See Fiore, 983 F.2d at 2;                                                  ___ _____          see also  United States v. St.  Cyr, 977 F.2d 698,  701 (1st Cir.          ___ ____  _____________    ________          1992)  (holding  that  a  de  novo  standard  of  review  governs                                    __  ____          interpretive questions under the sentencing guidelines).                    Appellant  launches  this  offensive  by  remarking the          obvious:  conspiracy convictions are not mentioned in the body of          either the  relevant guidelines,  U.S.S.G.   4B1.1-4B1.2, or  the          enabling legislation,  28 U.S.C.   994(h).4  He acknowledges that          Application Note 1, quoted supra Part III(A), purports to include                                     _____          certain conspiracies as triggering and/or predicate offenses, but          limns  two  reasons  why  sentencing  courts  must  boycott  this          conclusion.   First, he asserts that  the Sentencing Commission's                                        ____________________          offense for such purposes.  See, e.g., United States v. Bell, 966                                      ___  ____  _____________    ____          F.2d  703, 705 (1st  Cir. 1992)  (explaining that  it would  be a          "bizarre . . . anomaly" if the same crime were determined to be a          triggering offense, but not a predicate offense, under the career          offender  guideline, or  vice-versa); see  also United  States v.                                                ___  ____ ______________          Price, 990 F.2d  1367, 1369  (D.C. Cir. 1993)  (stating that,  in          _____          regard  to  classification,  the  statutory  definition  of  what          constitutes a triggering offense and what constitutes a predicate          offense "poses the same problem").               4In  the statute,  Congress directed  the Commission,  inter                                                                      _____          alia, to "assure that the guidelines specify a sentence to a term          ____          of  imprisonment at or near  the maximum term  authorized" for an          adult defendant convicted of a felony that is either "(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)," so long as  such defendant          "previously [has] been convicted of  two or more felonies,"  each          of which is a  crime of violence or controlled  substance offense          (defined in the same way as triggering offenses are defined).  28          U.S.C.   944 (h).   The Commission itself recognized  the primacy          of the statute and wrote the career offender guideline in part to          reflect  the  statutory  requirements.     See  U.S.S.G.   4B1.1,                                                     ___          comment. (backg'd.) (explaining that section 4B1.1 implements the          mandate of 28 U.S.C.   994(h)).                                          11          commentary is inconsistent with  the guideline itself and should,          therefore, be disregarded.  Second, he asserts that if, by reason          of the  commentary or otherwise,  the guideline  is construed  to          encompass     conspiracies     (particularly     drug-trafficking          conspiracies),   its   promulgation   exceeds    the   Sentencing          Commission's  statutory authority.  Neither assertion carries the          day.                 1.  Consistency with the Guideline.  With respect to the                     ______________________________          Sentencing Commission, the Court's instructions could scarcely be          more explicit:                    Commentary which functions  to interpret  [a]                    guideline or explain how it is to be applied,                    controls,  and if  failure  to follow,  or  a                    misreading  of, such commentary  results in a                    sentence  select[ed]  . .  .  from the  wrong                    guideline   range,    that   sentence   would                    constitute  an  incorrect application  of the                    sentencing guidelines . . . .           Stinson  v.  United  States,  113 S.  Ct.  1913,  1917-18  (1993)          _______      ______________          (citations and  internal quotation marks  omitted).  To  be sure,          commentary, though  important, must not be  confused with gospel.          Commentary is not binding  in all instances.  See Stinson, 113 S.                                                        ___ _______          Ct.  at 1918.  In  particular, commentary carries  no weight when          the  Commission's  suggested  interpretation  of a  guideline  is          "arbitrary, unreasonable, inconsistent with the guideline's text,          or contrary to law."  Fiore, 983 F.2d at 2.                                _____                    An  application note  and a guideline  are inconsistent          only when "following one will result in violating the dictates of          the other."   Stinson,  113 S.  Ct. at  1918.   That  is not  the                        _______          situation here.  Because  the application note with which  we are                                          12          concerned neither  excludes any offenses expressly  enumerated in          the guideline, nor calls  for the inclusion of any  offenses that          the guideline expressly excludes, there is no inconsistency.                    By like  token,  the application  note,  when  measured          against the  text  of the  career  offender guideline,  does  not          appear  arbitrary or  unreasonable.   In real-world  terms, drug-          trafficking  conspiracies  cannot  easily be  separated  from the          mine-run  of  serious  narcotics  offenses  and,  therefore,  the          Sentencing  Commission's inclusion  of conspiracy  convictions is          most accurately viewed  as interstitial.   It is  a logical  step          both from a lay person's coign of vantage and from the standpoint          of   the   Commission's    (and   Congress's)    oft-demonstrated          preoccupation with punishing  drug traffickers sternly.  It in no          way  detracts  from the  dictates of  the  guideline itself.   In          short,  the  application  note  comports  sufficiently  with  the          letter, spirit, and  aim of the guideline to bring  it within the          broad   sphere  of   the  Sentencing   Commission's  interpretive          discretion.  Cf.,  e.g., id.  at 1919 (holding  that an  agency's                       ___   ____  ___          interpretation of  its own regulations must  be given controlling          weight  if  it does  not violate  the  Constitution or  a federal          statute);  Robertson v. Methow Valley Citizens Council,  490 U.S.                     _________    ______________________________          332, 359 (1989) (similar).                    2.  Consistency with Section 994(h).  As we observed at                        _______________________________          the  outset,   the  question   of  whether  Application   Note  1          contravenes 28 U.S.C.   994(h) has divided the courts of appeals.          Three  circuits hold that  Application Note 1  conflicts with the                                          13          statute.  See United States v. Mendoza-Figueroa, __ F.3d ___, ___                    ___ _____________    ________________          (8th  Cir. 1994) [No. 93-2867 slip op.  at ___]; United States v.                                                           _____________          Bellazerius, 24 F.3d 698,  702 (5th Cir. 1994); United  States v.          ___________                                     ______________          Price, 990  F.2d 1367,  1369 (D.C.  Cir.  1993).    These  courts          _____          stress  that  a  "conspiracy  to commit  a  crime  involves quite          different elements from whatever substantive crime the defendants          conspire to commit"  and thus, cannot  be said to  be one of  the          offenses  "described   in"  the  statutes  that   section  994(h)          enumerates.  Price, 990 F.2d at 1369.   Accordingly, these courts                       _____          hold  that  the  Commission's  attempt to  introduce  crimes  not          expressly mentioned  in section  994(h) into the  career offender          calculus is contrary to law.  See, e.g., id.   In a related vein,                                        ___  ____  ___          these  courts also  hold that  since the  Commission stated  in a          "background" comment that it drafted U.S.S.G.  4B1.1 to implement          the  "mandate" of section 994(h),  and did not  provide any other          legal authority in  support of  its enactment,  the inclusion  of          conspiracies in the career  offender guideline cannot be regarded          as an exercise of the  Commission's discretionary powers under 28          U.S.C.   994(a).  See, e.g., Bellazerius, 24 F.3d at 702.                            ___  ____  ___________                    Several other  circuits  have adopted  a  diametrically          opposite view.  These courts hold that "[s]ection 994(h) provides          the minimum obligation  of the Commission  and does not  prohibit          the  inclusion  of  additional  offenses that  qualify  for  such          treatment."  United States  v. Damerville, 27 F.3d 254,  257 (7th                       _____________     __________          Cir. 1994); accord United  States v. Hightower, 25 F.3d  182, 187                      ______ ______________    _________          (3d  Cir. 1994); United States v. Allen, 24 F.3d 1180, 1187 (10th                           _____________    _____                                          14          Cir.  1994); United States  v. Heim, 15  F.3d 830, 832  (9th Cir.                       _____________     ____          1994);  cf. United States v. Beasley, 12  F.3d 280, 283 (1st Cir.                  ___ _____________    _______          1993).  Rather than viewing section 994(h) as a ceiling, limiting          the  Sentencing Commission's power,  these courts, constituting a          majority of the  circuits that have spoken to the  issue, see the          statute as a floor,  describing the irreducible minimum that  the          Commission must do  by way  of a career  offender guideline,  but          without  in any way inhibiting the Commission, in the exercise of          its lawfully delegated powers, from including additional offenses          within  the career  offender rubric.   See, e.g.,  Damerville, 27                                                 ___  ____   __________          F.3d at 257.                    We find  the majority view  more persuasive.   In  this          regard,  we  think  it is  significant  that  this  view is  more          compatible   with   discernible   congressional   intent.     The          legislative  history  makes plain  that  section  994(h) is  "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. 98-225, 98th          Cong., 1st Sess. 307 (1983), reprinted in 1984 U.S.C.C.A.N. 3182,                                       ____________          3359.5                                        ____________________               5This   legislative  history   also   casts  light   on  the          Commission's  use  of  the   term  "mandate,"  referring  to  the          "mandate" of section 994(h), in the background commentary to  the          career  offender  guideline.    See U.S.S.G.     4B1.1,  comment.                                          ___          (backg'd.).   We  think  it shows  rather  clearly that  Congress          wanted to guide the Commission in a general direction, not merely          to instruct it to make a one-time mechanical adjustment.   In our          opinion, the  overall context suggests  that Congress's "mandate"          directed the  Commission to  accord career offender  treatment to                                          15                    To cinch matters,  we believe  that Fiore    a case  in                                                        _____          which we  held that  a conviction  for a  conspiracy to commit  a          crime of  violence must be  treated for career  offender purposes          the  same as a conviction  for the crime  of violence itself, 983          F.2d at  3        aligns  us doctrinally with  the majority view.          And  because we  continue  to believe  that  Fiore was  correctly                                                       _____          decided, we do not resist its pull.                    3.  Validity of the Definitions.  Having concluded that                        ___________________________          28 U.S.C.   994(h)  neither comprises a ceiling nor  an exclusive          compendium of the crimes that are eligible to serve as triggering          or  predicate  offenses,  we  must  next  determine  whether  the          Commission  has lawful power to write the definition of "crime of          violence" and "controlled  substance offense" to  include certain          conspiracy convictions.   We believe the Commission's definitions          are both valid and applicable to Piper's case.                    On  this issue, our work  is largely behind  us, for we          have  addressed the question  on a number  of previous occasions.          In determining  what crimes  constitute covered offenses,  we use          the formal  categorical approach introduced by  the Supreme Court          in Taylor  v. United States, 495 U.S. 575 (1990).  See Fiore, 983             ______     _____________                        ___ _____          F.2d at 3; accord United  States v. Dyer, 9  F.3d 1, 2 (1st  Cir.                     ______ ______________    ____          1993)  (per  curiam).   Under such  an approach,  we look  to the          statutory  definition of the  offense in question,  as opposed to                                        ____________________          whatever drug-related crimes the  Commission believed to be  on a          par with the offenses enumerated in section 994(h).  And we think          that  the Commission  used the  word "mandate"  to refer  to this          broader policy.                                          16          the particular  facts underlying the conviction.   See Fiore, 983                                                             ___ _____          F.2d  at 3; see also United States v. Winter, 22 F.3d 15, 18 (1st                      ___ ____ _____________    ______          Cir. 1994).                    To determine the status of a conspiracy conviction vis-          a-vis the career offender rubric, the key question is "conspiracy          to do  what?"   Fiore,  983 F.2d  at 3.   If  the  object of  the                          _____          conspiracy  is  to commit  a crime  of  violence or  a controlled          substance offense,  as those  terms are defined  for purposes  of          U.S.S.G.      4B1.1,  then  the  career   offender  provision  is          applicable.   Here, answering the question brings  the offense of          conviction within the ambit of  the career offender guideline, as          appellant acknowledges that he pleaded guilty to a charge that he          participated in a drug-trafficking conspiracy.                    Appellant tries mightily to  avoid this conclusion.  He          claims that Fiore should  not be given suzerainty here.   In this                      _____          connection, appellant makes  two points:   (1)  Fiore involved  a                                                          _____          conspiracy   to  commit  a  crime  of  violence,  rather  than  a          conspiracy  to commit  a  controlled substance  offense; and  (2)          Fiore  involved  a predicate  offense  rather  than a  triggering          _____          offense.  To  be sure, these  distinctions exist -  but they  are          distinctions that make no legally relevant difference.                      Appellant's  first point  simply  will not  wash.   The          rationale on which the  Taylor Court relied in choosing  a formal                                  ______          categorical   approach  is   equally  applicable   to  controlled          substance  offenses.    For   one  thing,  the  approach  mirrors          Congress's approach.  See  Taylor, 495 U.S. at 575.   For another                                ___  ______                                          17          thing, the same practical  difficulties that militate against the          use  of  a fact-specific  analytic  method  are present  in  both          situations.   Cf.  Beasley, 12  F.3d at  284 (explaining  that to                        ___  _______          distinguish controlled substance predicate offenses based  on the          jurisdiction  of  conviction  would  "produce a  crazy  quilt  of          punishment results").                    We need not dwell  on appellant's second point.   As we          already have  noted,  see supra  note  3, an  identical  analysis                                ___ _____          applies  whether  the offense  in  question  is a  triggering  or          predicate offense.   Consequently,  the same result  must obtain.          Fiore controls.          _____                    4.  Rulemaking.  Appellant mounts one last challenge to                        __________          the inclusion  of conspiracy  convictions in the  career offender          calculus.    This  challenge  derives from  the  notion  that the          promulgation   of  Application   Note   1  constituted   improper          rulemaking in  violation of 28 U.S.C.    994(x).  We  reject this          initiative.   A  fair reading  of the  statute indicates  that it          requires no  more than  that the  promulgation of  the guidelines          themselves shall be subject to the rulemaking procedures detailed          in  the  Administrative Procedure  Act (APA).    See 28  U.S.C.                                                             ___          994(x)  (stating that  the  relevant APA  provisions,  such as  5          U.S.C.     553, "relating  to  the  publication  in  the  Federal          Register  and  public  hearing  procedure,  shall  apply  to  the                                                      _____________________          promulgation of Guidelines  pursuant to this section")  (emphasis          __________________________          supplied).                    In any event,  Application Note 1 is nothing  more than                                          18          an  interpretive  aid.   As  such,  it is  "akin  to  an agency's          interpretation of  its own legislative  rules."  Stinson,  113 S.                                                           _______          Ct.  at 1919.   It is not necessary  that such interpretations be          promulgated  in accordance  with the  formal requirements  of the          APA.   See 5 U.S.C.    553 (excluding  from rulemaking procedures                 ___          "interpretative rules, general statements  of policy, or rules of          agency organization, procedure, or practice").                  C.  Prior State Convictions as Predicate Offenses.                  C.  Prior State Convictions as Predicate Offenses.                      _____________________________________________                    Taking a slightly different tack, appellant asseverates          that the  enumeration of specific statutes  within section 994(h)          precludes  incorporation of state  court convictions as predicate          offenses  under   the  career  offender   provision;  and   that,          therefore, the court below committed reversible error in counting          his  convictions for state  drug-trafficking crimes.   We  do not          agree.                    The  short  of it  is that  this asseveration  has been          advanced    and  rebuffed    in  many  other cases.   See,  e.g.,                                                                ___   ____          Beasley,  12 F.3d  at 284  (holding that  to exclude  state drug-          _______          trafficking   convictions  would  thwart  Congress's  intent,  do          violence  to  the  language  of section  994(h),  and  create  an          unjustified anomaly); United States v. Rivera, 996 F.2d  993, 996                                _____________    ______          (9th Cir. 1993) (holding the Sentencing Commission's inclusion of          state convictions  as predicate  offenses to be  both permissible          and  reasonable); United States v. Whyte, 892 F.2d 1170, 1174 (3d                            _____________    _____          Cir. 1989)  (stating that,  under section 994(h),  predicate drug          offenses  need only involve "conduct that could have been charged                                          19          federally"), cert. denied, 494 U.S. 1070 (1990); see also Dyer, 9                       _____ ______                        ___ ____ ____          F.3d at 1 (explicitly endorsing Whyte rationale).                                          _____                    Displayed  against the  monochromatic backdrop  of this          massed authority, appellant's challenge fades.6                        D.  Constitutionality of the Sentence.                        D.  Constitutionality of the Sentence.                            _________________________________                    Appellant's  last-ditch  argument   is  that  the  mere          application  of  the  career  offender  guideline  in  this  case          infracts his  constitutional rights.   Specifically,  he contends          that the  Sentencing Commission,  in promulgating  the guideline,          violated both  the Due  Process  Clause (by  treating all  career          offenders    alike,   without   regard    to   their   individual          circumstances) and  the Cruel  and Unusual Punishment  Clause (by          prescribing  a sentence which does  not depend on  the gravity of          the conduct underlying the offense of conviction).7                     This  rumination deserves  short  shrift.   Appellant's          constitutional  challenge  leans  almost  exclusively  on  United                                                                     ______          States  v. Spencer,  817 F.  Supp. 176  (D.D.C. 1993).   However,          ______     _______                                        ____________________               6On appeal,  Piper  contends for  the  first time  that  his          antecedent state convictions are "not fairly or rationally linked          to the  [enumerated] federal crimes."  We eschew consideration of          this late-blooming argument.   It is settled that, in  respect to          criminal sentencing, as in other contexts, arguments not squarely          presented to the  sentencing court cannot debut as of right in an          appellate venue.  See  United States v. Sepulveda, 15  F.3d 1161,                            ___  _____________    _________          1202  (1st  Cir. 1993),  cert. denied,  114  S. Ct.  2714 (1994);                                   ____________          United  States v. Ocasio-Rivera, 991  F.2d 1, 3  (1st Cir. 1993);          ______________    _____________          United States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1993).          _____________    _____               7We  note that  appellant  also alludes  in  passing to  the          possibility that the career offender guideline abridges the Equal          Protection Clause.  Because  this allusion is not  accompanied by          any  developed argumentation,  we  deem it  waived.   See  United                                                                ___  ______          States v. Zannino, 895  F.2d 1, 17 (1st Cir.),  cert. denied, 494          ______    _______                               _____ ______          U.S. 1082 (1990).                                          20          Spencer has since been reversed, see United States v. Spencer, 25          _______                          ___ _____________    _______          F.3d  1105  (D.C. Cir.  1994),  and  is, therefore,  a  cardboard          crutch.   Moreover, the reversal  seems richly  deserved.   After          all, the prevailing  view is that  the career offender  guideline          does  not  violate the  Due Process  Clause.   See,  e.g., United                                                         ___   ____  ______          States v.  Davis, 15 F.3d  526, 533 n.5  (6th Cir.  1994); United          ______     _____                                           ______          States v.  John, 936  F.2d 764,  766 n.2 (3d  Cir. 1991);  United          ______     ____                                            ______          States v. Jones, 907 F.2d 929, 930 (9th Cir. 1990); United States          ______    _____                                     _____________          v. Green, 902 F.2d 1311, 1313 (8th Cir.), cert. denied,  498 U.S.             _____                                  _____ ______          943 (1990).  We share this view.                    To  the  extent that  appellant's  claim  of cruel  and          unusual  punishment rests  on the  district court's  reasoning in          Spencer,  it  is similarly  undone.    Perhaps more  importantly,          _______          appellant  fails  to  indicate   any  factor  that   meaningfully          distinguishes  his  sentence  as  a career  offender  from  other          sentences found by other courts to be in complete conformity with          the strictures of  the Eighth  Amendment.  See,  e.g., Rummel  v.                                                     ___   ____  ______          Estelle, 445  U.S. 263 (1980); Davis,  15 F.3d at  533 n.5; John,          _______                        _____                        ____          936  F.2d at  766 n.2.   Thus, appellant's  constitutional attack          misses the mark.          IV.  CONCLUSION          IV.  CONCLUSION                    We  need go no further.  Having examined the record and          the  applicable law with care, we find appellant's guilty plea to          have been properly received and his sentence to have been imposed          in accordance with law.   The career offender regime,  as crafted          by  Congress and  the Sentencing  Commission, is  harsh,  but the                                          21          courts  are obliged to  enforce it according  to its tenor.   The          district court did so here.                    Affirmed.                    ________                                          22
