                          NONPRECEDENTIAL DISPOSITION
                            To be cited only in accordance with
                                   Fed. R. App. P. 32.1




      United States Court of Appeals
                                   For the Seventh Circuit
                                   Chicago, Illinois 60604


                                    Argued May 21, 2013
                                    Decided July 19, 2013

                                              Before

                            RICHARD A. POSNER, Circuit Judge

                            DANIEL A. MANION, Circuit Judge

                            ILANA DIAMOND ROVNER, Circuit Judge


No. 13-1303

UNITED STATES OF AMERICA,                              Appeal from the United States District
                                                       Court for the Western District of
                        Plaintiff-Appellee,            Wisconsin

       v.                                              No. 12-CR-00031

JOE A. CRUZ                                            Barbara B. Crabb, Judge.

                     Defendant-Appellant.



                                          ORDER

        Joe Angel Cruz pleaded guilty to a drug-related conspiracy charge, and the district
court determined that Cruz should be sentenced as a career offender under the Sentencing
Guidelines because of his criminal record. Cruz argued that the Sentencing Commission
lacked the authority to promulgate the guidelines classifying him as a career offender, but
the district court rejected Cruz’s argument and sentenced him as a career offender. Cruz
appeals his sentence, and we affirm.
No. 13-1303                                                                             Page 2




                                              I.

        Cruz was distributing cocaine with his fiancée when a confidential informant told
local government officials about Cruz’s drug activities. To gather more evidence against
Cruz and his fiancée, officials arranged a series of controlled drug buys that occurred from
February 25 to December 17, 2010. On March 7, 2012, the government indicted Cruz on
seven drug-related counts. Count 1 charged Cruz with violating 21 U.S.C. § 846 (conspiracy
to possess with intent to distribute cocaine and conspiracy to distribute cocaine in violation
of § 841(a)(1)), and Counts 2–7 charged Cruz with violating 21 U.S.C. § 841(a)(1)
(distribution of cocaine). Cruz pleaded guilty to Count 1 on November 16, 2012, and the
case proceeded to Cruz’s sentencing.

        The Presentence Investigation Report recommended that Cruz be classified as a
career offender based on U.S.S.G. § 4B1.1 because he had three prior felony convictions:
substantial battery intending bodily harm, possession with intent to distribute marijuana,
and delivery of marijuana. Because Cruz was classified as a career offender, the Sentencing
Guidelines set Cruz’s offense level at 32, which was then adjusted downward to 29 because
Cruz accepted responsibility pursuant to U.S.S.G. § 3E1.1. With an offense level of 29 and a
criminal history category of VI, the Sentencing Guidelines recommended a sentencing range
of 151 to 188 months in prison.1

        Cruz filed a memorandum objecting to his classification as a career offender. He
argued that the Sentencing Commission lacked the authority from Congress to classify him
as a career offender for violating § 846. He based this argument on 28 U.S.C. § 994(h), which
authorizes the Sentencing Commission to promulgate career offender guidelines, but the


       1
         The Presentence Investigation Report used the November 2012 Sentencing
Guidelines manual to calculate the advisory guidelines range as required by our decision in
United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006). But after Cruz’s case was taken
under advisement, the Supreme Court released Peugh v. United States, 133 S. Ct. 2072 (2013),
which abrogated Demaree. Peugh held that the Ex Post Facto Clause is violated “when a
defendant is sentenced under Guidelines promulgated after he committed his criminal acts
and the new version provides a higher applicable Guidelines sentencing range than the
version in place at the time of the offense.” Id. at 2078. No Ex Post Facto Clause issues are
present in this case, however, because the relevant portions of the November 2012
Sentencing Guidelines do not provide a higher applicable sentencing range than the
November 2009 and November 2010 Sentencing Guidelines.
No. 13-1303                                                                              Page 3


statute only mentions defendants sentenced for “a crime of violence” or “an offense
described in [21 U.S.C. § 841; 21 U.S.C. §§ 952(a), 955, and 959; and 46 U.S.C. § 70503].”
§ 994(h)(1). Cruz claims that Congress did not mention § 846 in § 994(h) because it intended
that only “international drug traffickers” be classified as career offenders, and not mere
“street-level dealers.” Cruz had only pleaded guilty to violating § 846, which is not a crime
of violence and is not listed in § 994. Therefore, Cruz argued that he should not be
classified as a career offender, but should instead have an offense level of 17 with a criminal
history category of VI, which would result in a sentencing range of 51 to 63 months.

        On January 29, 2013, the district court rejected Cruz’s argument and observed that
Cruz’s prior criminal actions “make him a real danger to the community and probably
that’s what the Sentencing Commission had in mind when they were looking at criminal
history categories.” The district court therefore sentenced Cruz as a career offender to 151
months in prison, followed by three years of supervised release. On the government’s
motion, the court also dismissed Counts 2–7 of the indictment. Cruz then filed a timely
notice of appeal.

                                              II.

       As in the district court, Cruz argues on appeal that the Sentencing Commission lacks
the authority to promulgate guidelines that treat defendants pleading guilty under § 846 as
career offenders. We review the legal interpretation of the Sentencing Guidelines and
relevant statutes de novo. United States v. Eubanks, 593 F.3d 645, 649 (7th Cir. 2010).

        Congress gave the Sentencing Commission broad powers to “promulgate and
distribute” guidelines and general policy statements about criminal sentencing. 28 U.S.C.
§ 994(a). As a result, the Supreme Court has recognized that Congress delegated
“significant discretion” to the Sentencing Commission to formulate guidelines. Mistretta v.
United States, 488 U.S. 361, 369-70, 377-78 (1989). The Sentencing Commission’s discretion,
however, is still subordinate to the Constitution and congressional statutes. See Stinson v.
United States, 508 U.S. 36, 38 (1993) (holding that commentary to the Sentencing Guidelines
“is authoritative unless it violates the Constitution or a federal statute”).

       Section 994(h) requires the Sentencing Commission to promulgate career offender
guidelines for defendants sentenced for “a crime of violence” or “an offense described in [21
U.S.C. § 841; 21 U.S.C. §§ 952(a), 955, and 959; and 46 U.S.C. § 70503].” § 994(h)(1). As Cruz
points out, § 994(h) does not require the Sentencing Commission to promulgate career
offender guidelines for defendants sentenced under § 846. Nonetheless, the Sentencing
Commission has decided that its career offender guidelines also apply to defendants who
No. 13-1303                                                                             Page 4


are to be sentenced with “aiding and abetting, conspiring, and attempting to commit” the
offenses listed in § 994(h). U.S.S.G. § 4B1.2 cmt. n.1.

       We have upheld the Sentencing Commission’s exercise of discretion on this issue
because “the Sentencing Commission had the authority to include conspiracy as an offense
subject to treatment by the career offender provisions pursuant to its general authority
under § 994(a).” United States v. Damerville, 27 F.3d 254, 257 (7th Cir. 1994). Section 846
criminalizes a conspiracy to violate § 841, which is mentioned in § 994(h), and we have
therefore held that defendants sentenced for violating § 846 can be classified as career
offenders. Id. at 256-58. We have not required the Sentencing Commission to distinguish
between “international drug traffickers” and “street-level dealers,” but have instead
recognized that Congress and the Sentencing Commission were concerned about
addressing recidivism generally. See id. at 257.

        Cruz urges us to reconsider our ruling in Damerville in light of the Supreme Court’s
decision in United States v. LaBonte, 520 U.S. 751 (1997). LaBonte addressed the Sentencing
Commission’s definition of the term “offense statutory maximum” as used in the
Sentencing Guidelines. Id. at 753-55. The Supreme Court struck down the Sentencing
Commission’s definition in LaBonte because the definition violated a specific congressional
directive and the Sentencing Commission’s discretion “must bow to the specific directives
of Congress.” Id. at 757-62. But LaBonte does not affect our ruling in Damerville because we
have ruled that the Sentencing Commission was acting pursuant to its general authority,
and was not contradicting a specific directive of Congress in the process. See Damerville, 27
F.3d at 256-58.

       Additionally, we have already upheld our ruling in Damerville after the Supreme
Court issued LaBonte. United States v. Knox, 573 F.3d 441 (7th Cir. 2009). In Knox, we again
examined whether defendants charged under § 846 could be treated as career offenders
under U.S.S.G. § 4B1.1, and we observed that “[c]ourts have repeatedly recognized that this
exercise of the Commission’s authority under § 994 was valid.” Id. at 449. For this reason,
we favorably cited Damerville multiple times in Knox. Id.

                                             III.

        Because we see no reason to overturn Damerville, we continue to hold that the
Sentencing Commission is allowed to promulgate guidelines classifying defendants who
violate § 846 as career offenders. Cruz pleaded guilty to violating § 846, and the district
court properly applied the Sentencing Guidelines. We therefore AFFIRM Cruz’s sentence.
