           United States Court of Appeals
                      For the First Circuit
No. 09-2495

                    UNITED STATES OF AMERICA,

                             Appellee,

                                v.

                       CARLOS DÁVILA-FÉLIX,
                        a/k/a CARLOS MOÑA,

                       Defendant, Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF PUERTO RICO

          [Hon. Francisco A. Besosa, U.S. District Judge]


                              Before

                    Lipez, Ripple,* and Howard,
                          Circuit Judges.


     Ignacio Fernández de Lahongrais, was on brief for appellant.
     Ilianys Rivera Miranda, United States Attorney, with whom Rosa
Emilia Rodriguez-Velez, United States Attorney, Nelson Pérez-Sosa,
Assistant United States Attorney, Chief, Appellate Division, and
Luke Cass, Assistant United States Attorney, were on brief for
appellee.



                         December 13, 2011




     *
         Of the Seventh Circuit, sitting by designation.
           RIPPLE,    Circuit   Judge.       In   this   direct    appeal,1

Carlos Dávila-Félix seeks reversal of the sentence imposed by the

United States District Court for the District of Puerto Rico.2

           In March 2009, a jury found Mr. Dávila-Félix guilty of

using force and intimidation to rob a bank insured by the Federal

Deposit Insurance Corporation (“FDIC”), in violation of 18 U.S.C.

§ 2113(a), (d), and knowingly brandishing a firearm during the

commission of a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(ii).    At the sentencing hearing, the district court

concluded that Mr. Dávila-Félix qualified for a mandatory life

sentence under 18 U.S.C. § 3559(c)(1).            In addition, the court

determined that he qualified as a career offender under U.S.S.G.

§ 4B1.1.   The court ultimately sentenced Mr. Dávila-Félix to life

imprisonment   for    the   bank   robbery    offense     and     84   months’

imprisonment for the weapons offense, to be served consecutively.

The court also imposed a five-year term of supervised release for

each conviction, to be served concurrently.

           We hold that the record does not support the imposition

of a life sentence under the federal “three strikes” provision,

18 U.S.C. § 3559(c)(1). Nor does the record support the imposition

of a sentence under the career offender provision of the United


     1
        Our jurisdiction is predicated on 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a).
     2
        The jurisdiction of the district court was predicated on
18 U.S.C. § 3231.

                                   -2-
States Sentencing Guidelines.         See U.S.S.G. § 4B1.1.         Accordingly,

we reverse the judgment of the district court to the extent that it

imposed   such   a   sentence   and    remand    the    case   to    permit   the

imposition of a new sentence.

                                       I

                                BACKGROUND

           During a six-month period in 2003, Mr. Dávila-Félix

participated in a series of armed bank robberies in and around

San Juan, Puerto Rico.       These robberies took place on May 9, July

9, July 24, September 8, October 17 and November 3.            In March 2004,

he was arrested by commonwealth authorities and charged, under

commonwealth law, for five of the six armed robberies and related

weapons offenses.     Notably, he was not charged with the robbery or

weapons   offense     that   took     place     on    September     8,   2003.

Mr. Dávila-Félix cooperated with the authorities and ultimately

pleaded guilty to the charged offenses.              On April 5, 2004, he was

sentenced by the Commonwealth to six years’ imprisonment on each of

the robbery convictions and to five years for the weapons-related

offenses, all to be served concurrently.

           On April 30, 2008, four years after he was convicted and

sentenced for the initial robbery charges, and ten months after he

was released from prison, Mr. Dávila-Félix was indicted on federal

bank robbery and weapons charges in connection with the September

8, 2003 robbery of First Bank of Puerto Rico--the only robbery that


                                      -3-
the Commonwealth had not included as part of the original March

2004 charges.

           Prior to trial, the Government filed an information in

accordance with 21 U.S.C. § 851(a)(1),3 notifying the district

court and Mr. Dávila-Félix of its intention to seek a mandatory

life sentence under 18 U.S.C. § 3559(c)(1) based upon his prior

convictions, which included felony drug offenses as well as violent

crimes. In particular, the information included Mr. Dávila-Félix’s

prior convictions for the following offenses:       (1) May 26, 1993

convictions for second-degree murder, robbery and two weapons

violations; (2) June 25, 1993 conviction for two violations of

Article 401 of the Controlled Substances Act of Puerto Rico; (3)


     3
         The statute provides, in pertinent part:

           No person who stands convicted of an offense
           under this part shall be sentenced to
           increased punishment by reason of one or more
           prior convictions, unless before trial, or
           before entry of a plea of guilty, the United
           States attorney files an information with the
           court (and serves a copy of such information
           on the person or counsel for the person)
           stating in writing the previous convictions to
           be relied upon.

21 U.S.C. § 851(a)(1).

     Mr. Dávila-Félix provides a cursory argument regarding the
fact that the Government’s information misstated that the September
8, 2003 offense for which he was indicted was committed after the
other convictions listed in the information. We do not need to
address this issue because we conclude that the district court
improperly sentenced Mr. Dávila-Félix under 18 U.S.C. § 3559(c)(1);
however, we note that Mr. Dávila-Félix failed to allege any
confusion or prejudice derived from this error.

                                -4-
July 20, 2000 conviction for a violation of Article 404 of the

Controlled Substances Act of Puerto Rico, reduced to “attempted

Article 404”; and (4) April 5, 2004 convictions for bank robbery

and weapons violations, all under Puerto Rico law.4

              In March 2009, the jury found Mr. Dávila-Félix guilty of

robbing   a    bank    insured   by    the      FDIC,   by   use   of   force   and

intimidation,     in   violation      of   18   U.S.C. §     2113(a),    (d), and

brandishing a firearm during the commission of the robbery, a crime

of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).

              The district court sentenced Mr. Dávila-Félix to a life

sentence.     Although the record is less than clear, it appears that

the court based this determination on the federal three strikes

provision, 18 U.S.C. § 3559(c)(1).               The court also noted that a

life sentence was appropriate under the Sentencing Guidelines.                   In

reaching its determination under the three strikes provision, the

court did not consider Mr. Dávila-Félix’s June 25, 1993 and July

20, 2000 convictions for drug-related offenses; instead, it relied

explicitly upon his May 26, 1993 and April 5, 2004 violent felony

convictions as the two predicate offenses.




     4
        The Government and the district court recognize each of
these sets of convictions as one prior conviction for purposes of
the career offender guideline.        Section 4A1.2(a)(2) of the
Sentencing Guidelines provides that prior sentences are to be
treated as one sentence for purposes of criminal history if “(A)
the sentences resulted from offenses contained in the same charging
instrument; or (B) the sentences were imposed on the same day.”

                                        -5-
           In calculating the advisory range under the Sentencing

Guidelines, the court began with a base offense level of 20.               After

applying   an   additional      three-level     increase    based      upon   the

circumstances surrounding the offense, the court arrived at a total

offense level of 23 and a Criminal History Category of V, which

yielded a guidelines imprisonment range of 84–105 months.                     The

district   court   then   classified      Mr.   Dávila-Félix      as   a   career

offender pursuant to U.S.S.G. § 4B1.1(a) on the ground that he had

“two prior convictions of crimes of violence.”          Sent. Tr., 41.        The

career offender enhancement resulted in a total offense level of 37

and a Criminal History Category of VI, which corresponded to a

guidelines   range   of   360    months    to   life.      This   enhancement,

therefore, increased Mr. Dávila-Félix’s maximum within-guidelines

sentence from 105 months to life imprisonment.

           The district court ultimately sentenced Mr. Dávila-Félix

to life imprisonment for bank robbery and 84 months’ imprisonment

for the weapons offense, to be served consecutively.              In addition,

the court ordered that Mr. Dávila-Félix be placed in supervised

release for a term of five years for each conviction, to be served

concurrently, should he ever be released.

                                     II

                                 DISCUSSION

           Mr. Dávila-Félix submits that the district court, in

relying upon his April 2004 convictions, erred by determining that


                                     -6-
he qualified for a life sentence under 18 U.S.C. § 3559(c)(1).    He

further contends that the court erred by treating the April 2004

convictions as a predicate offense under the career offender

provision. We discuss each of Mr. Dávila-Félix’s challenges to his

sentence in turn.5

                                A.

          We first examine whether the district court correctly

determined that Mr. Dávila-Félix was subject to mandatory life

imprisonment under the federal “three strikes” provision.        See

18 U.S.C. § 3559(c)(1).    We review this question de novo.      See

United States v. DeLuca, 137 F.3d 24, 39 (1st Cir. 1998).

                                1.

          Mr. Dávila-Félix submits that the plain language of

§ 3559(c)(1) requires that the instant offense, or third strike, be

committed after the defendant’s conviction for the second strike,



     5
        Mr. Dávila-Félix makes a supplemental argument in a Rule
28(j) letter that the “except” clause of 18 U.S.C. § 924(c)(1)(A)
exempts him from a mandatory consecutive sentence for violating
§ 924(c) because he also received a greater mandatory minimum
sentence on a different count of conviction--a mandatory term of
life imprisonment based upon his robbery conviction. This argument
was not made in the defendant’s opening brief and, therefore, is
waived. See United States v. Coplin, 463 F.3d 96, 102 n.6 (1st
Cir. 2006); United States v. Nason, 9 F.3d 155, 163 (1st Cir.
1993). In any event, Mr. Dávila-Félix’s additional argument has
been foreclosed by the Supreme Court’s decision in Abbott v. United
States, 131 S. Ct. 18, 23 (2010), in which the Court held “that a
defendant is subject to a mandatory, consecutive sentence for a
§ 924(c) conviction, and is not spared from that sentence by virtue
of receiving a higher mandatory minimum on a different count of
conviction.”

                               -7-
in this case the April 2004 convictions.   He asserts that, because

the September 8, 2003 robbery took place before the April 5, 2004

convictions, the district court improperly treated the April 2004

convictions as a second strike under the statute.

          The Government maintains that the district court properly

treated Mr. Dávila-Félix’s April 2004 convictions as a second

strike under the statute because § 3559(c)(1) only requires that

the first and second strikes be sequential.

          In resolving this question of statutory interpretation,

we begin with the plain language of the statute.6         Here, the

statute reads, in relevant part:

          Notwithstanding any other provision of law, a
          person who is convicted in a court of the
          United States of a serious violent felony
          shall be sentenced to life imprisonment if–

               (A) the person has been convicted
               (and those convictions have become
               final) on separate prior occasions
               in a court of the United States or
               of a State of--

                    (i)   2 or more serious
                    violent felonies; or

                    (ii) one or more serious
                    violent felonies and one
                    or   more  serious  drug
                    offenses; and




     6
        See United States v. Godin, 534 F.3d 51, 56 (1st Cir.
2008); see also Staples v. United States, 511 U.S. 600, 605 (1994)
(recognizing that the language of a criminal statute is the
starting point of the court’s interpretation).

                               -8-
                   (B) each serious violent felony or
                   serious drug offense used as a basis
                   for    sentencing     under     this
                   subsection, other than the first,
                   was committed after the defendant’s
                   conviction of the preceding serious
                   violent felony or serious drug
                   offense.

18 U.S.C. § 3559(c)(1) (emphasis added).

           It is undisputed that, according to the plain language of

§ 3559(c)(1)(B), the second “violent felony or serious drug offense

used as a basis for sentencing” must have been committed after the

first conviction.      The Government nevertheless asserts that this

requirement only extends to the second offense. In its view of the

sequencing requirement in subsection (c)(1)(B), the phrase “other

than the first” should be understood to mean that the second

offense must be committed after the first conviction, but the

instant offense, for which the defendant would face a mandatory

term of life imprisonment, could have been committed at any time.

           We cannot agree with this interpretation; it is simply

contrary to the plain language of the statute.                     The instant

offense, which is alleged to constitute the third strike under the

statute and serves as the trigger for the mandatory life sentence

under § 3559(c)(1), is a “serious violent felony or serious drug

offense”   which     the   sentencing     court   “used   as   a    basis   for

sentencing.”   In other words, it is precisely this third strike

that triggers the mandatory sentencing provisions.                 The instant



                                    -9-
offense,    therefore,        must     be   committed        after    the    defendant’s

conviction for the preceding offense.

             Although the plain language of the statute suffices, we

note   in   passing      that    the     legislative         history    also    supports

Mr. Dávila-Félix’s contention that Congress intended a sequential

approach to the three strikes law.                   The House Report explains that

subsection (c) “mandates that each serious violent felony or

serious     drug   offense      used     as      a   basis   for     sentencing    under

[subsection (c)], other than the crime for which the conviction

became the defendant’s first ‘strike’, be committed after the

defendant’s conviction for the preceding ‘strike.’”                         H.R. Rep. No.

103-463, at 9 (1994), 1994 WL 107574. The Report explicitly refers

to each strike and suggests that a “defendant’s conviction of the

preceding serious violent felony or serious drug offense” in the

latter portion of subsection (c)(1)(B) specifically refers to each

strike--to include the third strike, or instant offense. Id. at 5.

             Notably,     a     review      of   other    sentencing        enhancements

similar     to     the    three        strikes         provision       also     supports

Mr. Dávila-Félix’s interpretation of the language of the statute.

See United States v. Luna-Diaz, 222 F.3d 1, 4–5 (1st Cir. 2000)

(examining related statutes and determining that they supported the

court’s conclusion with respect to the language of the statute).

In addition to the sequential approach taken in the career offender

provision of the Sentencing Guidelines, which contains language


                                            -10-
very similar to the federal three strikes law, see discussion infra

pp. 15–17, we recently acknowledged that a sequential approach is

required under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.

§ 924(e).    See United States v. Pratt, 568 F.3d 11, 15 (1st Cir.

2009) (explaining that, in order to establish a violation of

18 U.S.C. § 922(g)(1), the government must prove, among other

things, that “the defendant had been convicted of a felony prior to

his possession of the firearm”).        Additionally, in 21 U.S.C.

§ 841(b)(1)(A), which provides for a sentencing enhancement for

repeat drug offenders, Congress explicitly adopted a sequential

approach:    “If any person commits such a violation after a prior

conviction for a felony drug offense has become final, such person

shall be sentenced to a term of imprisonment which may not be less

than 20 years and not more than life imprisonment . . . .”       The

district court therefore erred in treating Mr. Dávila-Félix’s April

2004 convictions as predicate offenses under § 3559(c)(1).

                                  2.

            On the record before us, Mr. Dávila-Félix’s June 1993 and

July 2000 drug convictions identified in the information cannot

serve as a “serious drug offense” for the purposes of § 3559(c)(1)

such that they would qualify as a second strike under the statute.7


     7
       On appeal, the Government confines its argument with respect
to § 3559(c) to one of statutory interpretation. We therefore note
that the Government does not address whether Mr. Dávila-Félix's
prior drug convictions constitute predicate offenses under the
federal three strikes provision. Nevertheless, in the interest of

                                 -11-
In order to qualify as “serious drug offenses,” Mr. Dávila-Félix’s

convictions    must   have   been for    conduct    that involved     a   drug

quantity sufficient to be punishable under sections 841(b)(1)(A),

848, or 960(b)(1)(A) of Title 21.          See 18 U.S.C. § 3559(c)(2)(H).

           In July 2000, Mr. Dávila-Félix was convicted for a

violation of Article 404 of the Controlled Substances Act of Puerto

Rico, which provides, in relevant part, that it is “unlawful for

any person, knowingly or intentionally, to possess any controlled

substance, unless such substance was obtained directly, or pursuant

to a valid prescription or order from a practitioner, while acting

in the course of his professional practice, or except as authorized

by this chapter.”      P.R. Laws Ann. tit. 24, § 2404(a).           Because,

unlike   the   predicate     offenses   in   §   3559(c),   the   statute   of

conviction prohibits only simple possession and makes no mention of

drug quantity, this conviction does not fall within the definition

of a “serious drug offense” under § 3359(c).                 See 18 U.S.C.

§ 3559(c)(2)(H).

           In June 1993, Mr. Dávila-Félix was convicted for two

violations of Article 401 of the Controlled Substances Act of

Puerto Rico, which provides, in pertinent part:

           (a) Except as authorized by this chapter, it
           shall be unlawful for any person knowingly or
           intentionally:


completeness, we examine whether the drug convictions listed in the
Government's information may substitute as predicate offenses under
the statute.

                                    -12-
                (1) To manufacture, distribute,
                dispense, transport or conceal, or
                possess    with  the   intent   to
                manufacture, distribute, dispense,
                transport or conceal a controlled
                substance.

                (2) To produce, distribute, or
                dispense, transport or conceal, or
                possess   with    the    intent   to
                distribute or dispense, transport or
                conceal an adulterated substance.

P.R. Laws Ann. tit. 24, § 2401.

           Even if we were to assume that the commonwealth court

records were sufficient to establish that Mr. Dávila-Félix was

convicted of distribution or possession with intent to distribute,

as required by 21 U.S.C. § 841(b)(1)(A), rather than concealment,

which is not a qualifying offense, see discussion infra pp. 20-21,

they would not be sufficient to establish that Mr. Dávila-Félix’s

June 1993 convictions constitute a “serious drug offense” under

§   3559(c)(2)(H).   As   the   Government   appeared   to   concede   at

sentencing, § 2401 of the Puerto Rican Code establishes fixed

penalties based on drug type and the circumstances of the offense,

rather than drug quantity, and there is, therefore, no indication

that the offense would have been punishable under § 841(b)(1)(A).

Accordingly, neither drug conviction qualifies as a “serious drug

offense” for the purposes of § 3559(c)(1).




                                 -13-
                                       B.

           In   addition     to     determining     that   Mr.   Dávila-Félix

qualified for a mandatory life sentence under the three strikes

provision, the district court also determined the sentence it would

impose under the Sentencing Guidelines.             In so doing, the court

classified Mr. Dávila-Félix as a career offender based upon two

prior    convictions   for        crimes     of   violence.      Before   us,

Mr. Dávila-Félix contends, and the Government concedes, that the

sentencing court improperly applied the career offender guideline

because the September 8, 2003 robbery took place before he was

convicted and sentenced, on April 5, 2004, for what the court

deemed to be his second “prior felony conviction” under § 4B1.1.

“Whether a prior conviction qualifies as a predicate offense under

U.S.S.G. § 4B1.1 is a question of law that we review de novo.”

United States v. Almenas, 553 F.3d 27, 31 (1st Cir. 2009).8

           Under the Guidelines, a defendant is classified as a

career offender if the following three criteria are met:



     8
        The Government argues that, because Mr. Dávila-Félix did
not object to his designation as a career offender in his
sentencing memorandum or during the sentencing hearing itself, this
issue has been waived. We construe the Government’s subsequent
motion to remand for resentencing, filed after both parties had
submitted their briefs, as a concession that this issue is entitled
to at least plain error review. We therefore conclude that the
Government’s action amounts to a waiver of its previously asserted
waiver argument with respect to Mr. Dávila-Félix’s designation as
a career offender. See United States v. Walker, 538 F.3d 21, 23
(1st Cir. 2008); United States v. Sagendorf, 445 F.3d 515, 516 (1st
Cir. 2006).

                                      -14-
          (1) the defendant was at least eighteen years
          old at the time the defendant committed the
          instant offense of conviction; (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(a); see also Almenas, 553 F.3d at 31.           It is the

third criterion that is at issue here.

          The   district   court    took    the   view   that   the   third

requirement was fulfilled if the defendant had been convicted of

two qualifying offenses prior to sentencing in the instant offense.

The parties now agree that the district court’s reading of the

third requirement is erroneous and that the reading adopted by the

Second Circuit in United States v. Chartier, 933 F.2d 111, 113-15

(2d Cir. 1991), which requires that a defendant be convicted of two

qualifying prior offenses prior to the commission of the instant

offense, is consistent with the language of the Guidelines.

          The parties are correct.         Again, the plain language of

the Guidelines provides the basis for our decision.             Under the

Guidelines, “The term ‘two prior convictions’ means . . . the

defendant committed the instant offense of conviction subsequent to

sustaining at least two felony convictions of either a crime of

violence or a controlled substance offense.”         U.S.S.G. § 4B1.2(c)

(emphasis added). The fact that the September 8, 2003 robbery, the

“instant offense,” took place before Mr. Dávila-Félix was convicted


                                   -15-
on April 5, 2004 for the string of robberies does not fit within

the definition of “two prior felony convictions” provided in

§ 4B1.2(c).       Given the plain language of the career offender

guideline, the district court improperly considered the April 2004

convictions to be a “prior felony conviction.”

              Further,   despite   the    Government’s    argument     to   the

contrary, Mr. Dávila-Félix’s June 25, 1993 drug convictions do not

constitute a “controlled substance offense,” which also might

qualify as a second predicate offense for purposes of the career

offender provision. See U.S.S.G. § 4B1.2(b). On the record before

us, the information presented regarding these drug convictions

simply does not contain the requisite information that would permit

a court to determine whether they indeed constitute “controlled

substance offenses” as defined by U.S.S.G. § 4B1.2(b).

              The Government bears the burden of establishing that a

prior conviction qualifies as a predicate offense for sentencing

enhancement purposes.      See United States v. Bryant, 571 F.3d 147,

153 (1st Cir. 2009).        Here, with respect to Mr. Dávila-Félix’s

June 1993 drug convictions, the Government provided certified

copies of the judgments, which imposed concurrent sentences of ten

years   for    two   violations    of    Article   401   of   the   Controlled

Substances Act of Puerto Rico.          See United States v. McKenzie, 539

F.3d 15, 18–19 (1st Cir. 2008) (noting that “[t]he Government may

satisfy its burden by producing a certified copy of the conviction


                                    -16-
or an equivalent proffer”).          However, the fact that the Government

“sufficiently    proved”    the        existence      of   the    June      1993    drug

convictions “does not . . . end our inquiry.”                     United States v.

Jimenez, 512 F.3d 1, 7 (1st Cir. 2007).                    We also must consider

whether the underlying offense qualifies as a “controlled substance

offense” within the meaning of the guideline.                         See id. at 7;

U.S.S.G. § 4B1.2(b).

           In determining whether a prior conviction qualifies as a

predicate offense under the career offender guideline, we apply the

“categorical approach” adopted by the Supreme Court in Taylor v.

United States, 495 U.S. 575, 600-02 (1990).                 See Bryant, 571 F.3d

at 157 n.7 (acknowledging the application of the categorical

approach in     the   context     of    determining        whether a        state   drug

conviction constituted a “controlled substance offense” under the

career offender guideline); Almenas, 553 F.3d at 33 (recognizing

the   applicability    of   the      categorical      approach        to    the   career

offender   guideline).9         In     short,   “we    look      to   the    statutory


      9
        See also United States v. Giggey, 551 F.3d 27, 38 (1st Cir.
2008) (en banc) (holding that, although Taylor v. United States,
495 U.S. 575 (1990), concerned the Armed Career Criminal Act, the
categorical approach may also be applied in interpreting the career
offender guideline); United States v. Pelletier, 469 F.3d 194, 202
(1st Cir. 2006) (explaining that Taylor and its progeny “address
the appropriate sources for ascertaining the elements of a putative
predicate offense when the statute of conviction encompasses both
conduct that would constitute a predicate offense and conduct that
would not”); United States v. Piper, 35 F.3d 611, 619 (1st Cir.
1994) (recognizing that “[t]he rationale on which the Taylor Court
relied in choosing a formal categorical approach is equally
applicable to controlled substances offenses” under the career

                                        -17-
definition of the offense in question, as opposed to the particular

facts underlying the conviction.”                 United States v. Piper, 35 F.3d

611, 619 (1st Cir. 1994); see also United States v. DeLuca, 17 F.3d

6,   8   (1st     Cir.   1994).        If   the    state   statute   of   conviction

encompasses only conduct that constitutes a predicate offense,

“there is no problem, because the conviction necessarily implies

that the defendant has been found guilty of” a predicate offense.

Taylor, 495 U.S. at 599.               However, “in a narrow range of cases,”

id. at 602, where the statute under which the defendant was

convicted encompasses both predicate and non-predicate conduct, we

must look to the “facts that can be mined from the record of

conviction” in order to determine whether the defendant necessarily

was convicted of a crime that constitutes a predicate offense under

the Guidelines.          See Magasouba v. Mukasey, 543 F.3d 13, 14 (1st

Cir.     2008)    (employing       a    “modified     categorical     approach”    in

determining whether a state conviction constituted a removable

aggravated felony); United States v. Turbides-Leonardo, 468 F.3d

34, 38—40 (1st Cir. 2006) (applying a modified categorical approach

in determining whether a state drug conviction constituted a “drug

trafficking offense” for the purposes of a sentencing enhancement

under U.S.S.G. § 2L1.2); see also United States v. Savage, 542 F.3d

959,     964—66    (2d   Cir.     2008)     (applying      a   modified   categorical




offender guideline).

                                            -18-
approach in reviewing a district court’s decision to apply a

sentencing enhancement under U.S.S.G. § 2K2.1(a)(2)).

             In order to qualify as a “controlled substance offense”

for purposes of the career offender guideline, the drug offense

must    be   one    that    is   “punishable     by    imprisonment            for    a   term

exceeding one year, that prohibits 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.

§ 4B1.2(b).        As this court previously has noted, the Puerto Rico

statute under which Mr. Dávila-Félix was convicted, in addition to

criminalizing the more obvious drug trafficking offenses, such as

distribution, dispersal and possession with intent to distribute of

controlled substances, also criminalizes actions that are not

commonly considered drug trafficking offenses, such as concealment

of a controlled substance.              See P.R. Laws Ann. tit. 24, § 2401;

Turbides-Leonardo,           468    F.3d    at        37       n.2.10           Therefore,

Mr. Dávila-Félix’s conviction under the Puerto Rico statute cannot

categorically qualify as a “controlled substance offense” within

the meaning of § 4B1.2(b) because it criminalizes conduct that

falls outside the guidelines definition.




       10
        The text of this statute is provided, in relevant part, on
page 13 of this opinion.

                                         -19-
           Although the Government alleges that Mr. Dávila-Félix was

convicted for possession of cocaine and marijuana with intent to

distribute,    the       Government        has    not    established       that

Mr. Dávila-Félix necessarily was convicted of a predicate offense

rather than a non-predicate offense such as “intent to conceal.”

           Both the Government and the district court described the

offense in question as “possession with intent to distribute

cocaine and marijuana,” see Sent. Tr., 7; Appellee’s Br. at 26—27,

but the details of the prior conviction are not made readily

apparent by the record of the convicting court.                 See Shepard v.

United   States,   544   U.S.   13,   16     (2005)   (noting    that,   when   a

defendant has pleaded guilty, the sentencing court may look to the

“statutory definition, charging document, written plea agreement,

transcript of plea colloquy, and any explicit factual finding by

the trial judge to which the defendant assented”); United States v.

Dancy, 640 F.3d 455, 466 (1st Cir. 2011) (explaining that, “if the

state statute encompasses multiple offenses, one or more of which

are not ACCA predicates, ‘a court may look to a restricted set of

documents (e.g., indictment, plea colloquy, jury instructions) to

ascertain which of the multiple offenses served as the offense of

conviction’” (quoting United States v. Holloway, 630 F.3d 252,

256—57 (1st Cir. 2011))).       In asserting that the defendant’s June

1993 drug convictions constitute a predicate offense under the

career offender guideline, the Government relies primarily upon the


                                      -20-
facts as recounted in the presentence investigation report.                           This

court has stated that “a presentence report in a subsequent case

ordinarily may not be used to prove the details of the offense

conduct that underlies a prior conviction.” Turbides-Leonardo, 468

F.3d at 39.     We therefore conclude that, on the record before us,

the    Government      has   not       met     its    burden     of    proving        that

Mr. Dávila-Félix’s prior drug conviction qualified as a career

offender predicate.

             We acknowledge that Mr. Dávila-Félix should have–-but did

not--object to the analysis in the presentence report during the

sentencing     proceeding       in    the    district    court.        There    are    two

reasons, however, why, under the circumstances presented here, we

ought not consider that failure a waiver in our present disposition

of    this   appeal.     First,       we    already     have    concluded      that    the

Government has waived its argument with respect to its general

career offender waiver argument by conceding during the pendency of

this appeal that the issue is deserving of plain error review.

Consequently, we must also conclude that the Government has waived

its more specific argument with respect to Mr. Dávila-Félix’s

failure to contest his drug convictions.                       Second, although the

sentencing transcript demonstrates a significant lack of focus, it

is apparent that the district court did not rely on the drug

convictions     at     sentencing.           Here,    unlike     the    situation       in

Turbides-Leonardo,        the        drug    convictions       were     only    briefly


                                            -21-
referenced and were not discussed or relied upon at sentencing.

Cf. id. at 36-39.     Certainly, there was no “ready acquiescence” in

the presentence report’s characterization as we readily found in

Turbides-Leonardo.     Id. at 38.       We can hardly say, as we did in

Turbides-Leonardo,     that     the    district       court    “embraced”   the

presentence report’s characterization of the drug convictions. Id.

at 37.   Consequently, we do not think that, on this record, it is

appropriate, or fair, to hold Mr. Dávila-Félix accountable for

remaining silent on the issue.              The standards for plain error

review clearly are met.       See United States v. Olano, 507 U.S. 725,

731-37 (1993); United States v. DeCicco, 439 F.3d 36, 44-45 (1st

Cir. 2006).

                                  Conclusion

          The district court’s interpretation of the three strikes

provision of 18 U.S.C. § 3559(c)(1) and its interpretation of the

career offender guideline contained in § 4B1.1 of the Sentencing

Guidelines    were   erroneous.       The    record   provides    insufficient

information to justify the imposition of the sentence on the basis

of Mr. Dávila-Félix’s prior drug offenses.                    Accordingly, the

sentence imposed by the district court is reversed and the case is

remanded for resentencing.

          REVERSED and REMANDED.




                                      -22-
