19‐412‐cr
United States v. Richardson

                           In the
               United States Court of Appeals
                       FOR THE SECOND CIRCUIT



                                AUGUST TERM 2019
                                  No. 19‐412‐cr

                        UNITED STATES OF AMERICA,
                                 Appellee,

                                       v.

                              KOLONGI RICHARDSON,
                               Defendant‐Appellant.



            On Appeal from the United States District Court
                for the Northern District of New York



                        SUBMITTED: FEBRUARY 3, 2020
                           DECIDED: MAY 5, 2020



Before:        WALKER, CHIN, and MENASHI, Circuit Judges.

       Defendant‐Appellant Kolongi Richardson challenges the
procedural and substantive reasonableness of his sentence, imposed
upon his conviction for distribution and possession with intent to
distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1).
The district court (Suddaby, C.J.) did not commit procedural error by
applying the career offender sentencing enhancement of United
States Sentencing Guidelines § 4B1.1 because Richardson’s prior
convictions of conspiracy to distribute a controlled substance in
violation of 21 U.S.C. §§ 841(a)(1) and 846, and attempted criminal
possession of a controlled substance in violation of N.Y. Penal Law
§ 220.16(1), qualify as “controlled substance offenses,” as defined in
U.S.S.G. § 4B1.2(b). Nor did the district court commit substantive
error because it properly considered Richardson’s criminal history
and adequately accounted for his need for mental health and
substance abuse treatment when it imposed the sentence. We reject
Richardson’s arguments and AFFIRM the judgment.



             Rajit S. Dosanjh, Assistant United States Attorney
             (Nicolas Commandeur, Assistant United States
             Attorney, on the brief), for Grant C. Jaquith, United States
             Attorney for the Northern District of New York,
             Syracuse, New York, for Appellee.

             Melissa A. Tuohey, Assistant Federal Public Defender,
             for Lisa A. Peebles, Federal Public Defender, Syracuse,
             New York, for Defendant‐Appellant.



MENASHI, Circuit Judge:

      Kolongi Richardson appeals a judgment, entered February 5,
2019, following a guilty plea, sentencing him principally to 210
months’ imprisonment for distribution and possession with intent to
distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1).
On appeal, Richardson challenges the procedural and substantive
reasonableness of his sentence.

                                   2
      Richardson argues that (1) the district court erred procedurally
when it determined that his prior convictions for conspiracy to
distribute a controlled substance and attempted criminal sale of a
controlled substance qualify as controlled substance offenses under
the career offender guideline, U.S.S.G. § 4B1.2(b), and (2) the sentence
was substantively unreasonable because the court assigned too much
weight to his criminal history and did not adequately account for his
need for mental health and substance abuse treatment. We reject
Richardson’s arguments and affirm the judgment below.

                                FACTS

      On September 21, 2018, Richardson pleaded guilty to
distribution and possession with intent to distribute a controlled
substance in violation of 21 U.S.C. § 841(a)(1). At sentencing, the
district court concluded that Richardson qualified for the career
offender enhancement of U.S.S.G. § 4B1.1 and sentenced him
principally to 210 months’ imprisonment. The Sentencing Guidelines
provide for such an enhancement where, inter alia, “the instant offense
of conviction is a felony that is either a crime of violence or a
controlled substance offense” and “the defendant has at least two
prior felony convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1. The district court found that
Richardson met both criteria—his conviction under 21 U.S.C.
§ 841(a)(1) was a felony controlled substance offense, and he had two
prior felony controlled substance offense convictions. In 2005,
Richardson was convicted of conspiracy to distribute and possession
with intent to distribute cocaine and cocaine base in violation of 21
U.S.C. §§ 841(a)(1) and 846, and in 2012, Richardson was convicted of
attempted criminal possession of a controlled substance in the third
degree in violation of N.Y. Penal Law (“N.Y.P.L.”) § 220.16(1). The

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district court imposed an additional six‐year term of supervised
release that included mandatory participation in mental health and
substance abuse programs.

                             DISCUSSION

      This court “review[s] the procedural and substantive
reasonableness of a sentence under a deferential abuse‐of‐discretion
standard.” United States v. Yilmaz, 910 F.3d 686, 688 (2d Cir. 2018) (per
curiam). “The procedural inquiry focuses primarily on the sentencing
court’s compliance with its statutory obligation to consider the factors
detailed in 18 U.S.C. § 3553(a), while the substantive inquiry assesses
the length of the sentence imposed in light of the § 3553(a) factors.”
United States v. Castillo, 896 F.3d 141, 148 (2d Cir. 2018). A sentence is
substantively unreasonable if it is “manifestly unjust” or “shock[s] the
conscience.” United States v. Rigas (Rigas II), 583 F.3d 108, 122‐24 (2d
Cir. 2009). We will “set aside a district court’s substantive
determination only in exceptional cases where the trial court’s
decision ‘cannot be located within the range of permissible
decisions.’” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en
banc) (quoting United States v. Rigas (Rigas I), 490 F.3d 208, 238 (2d Cir.
2007)) (emphasis omitted).

      When the defendant has preserved a claim that the district
court erred in its application of the sentencing guidelines, “[w]e
review issues of law de novo, issues of fact under the clearly erroneous
standard, [and] mixed questions of law and fact either de novo or
under the clearly erroneous standard depending on whether the
question is predominantly legal or factual.” United States v. Selioutsky,
409 F.3d 114, 119 (2d Cir. 2005) (internal citations omitted).



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                                   I

      A “controlled substance offense” is “an offense under federal
or state law, punishable by imprisonment for a term exceeding one
year, that prohibits 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. Application
Note 1 to § 4B1.2 further defines “controlled substance offense” to
“include the offenses of aiding and abetting, conspiring, and
attempting to commit such offenses.” U.S.S.G. § 4B1.2 cmt. n.1.

                                   A

      Prior to his conviction in this case, Richardson was twice
convicted of felonies relating to drug‐trafficking—conspiracy to
distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1)
and 846 and attempted criminal possession of a controlled substance
in violation of N.Y.P.L. § 220.16(1). As Application Note 1 interprets
§ 4B1.2(b), these prior felony convictions qualify as controlled
substance offenses. Nevertheless, Richardson argues that these
convictions are not controlled substance offenses under § 4B1.2(b),
properly understood, because Application Note 1 impermissibly
expands the guideline’s definition of “controlled substance offense”
to include inchoate offenses. According to Richardson, the text of
§ 4B1.2(b) does not bear that interpretation. See Stinson v. United
States, 508 U.S. 36, 38 (1993) (“[C]ommentary in the Guidelines
Manual that interprets or explains a guideline is authoritative unless
it ... is inconsistent with, or a plainly erroneous reading of, that
guideline.”). This argument is foreclosed by our decision in United
States v. Tabb, 949 F.3d 81 (2d Cir. 2020). In that case, this court
concluded that United States v. Jackson, 60 F.3d 128 (2d Cir. 1995),


                                   5
which upheld the authority of the Sentencing Commission to adopt
Application Note 1, precludes any further argument “that
Application Note 1 improperly conflicts with the guideline text.”
Tabb, 949 F.3d at 87. While Jackson focused on the consistency of
Application Note 1 with the authorizing statute rather than the
guideline, this court concluded that “there is no way to reconcile”
Jackson’s holding with a challenge such as Richardson’s. Id.

       Regardless of the scope of Jackson’s holding, Richardson’s
argument cannot prevail because Application Note 1 is not
“inconsistent with, or a plainly erroneous reading of” § 4B1.2. Stinson,
508 U.S. at 38. Section 4B1.2 defines “controlled substance offense” as
an offense under federal or state law “that prohibits the manufacture,
import, export, distribution, or dispensing of a controlled substance.”
To “prohibit” means, among other things, “to prevent [or] hinder.”
Prohibit, Oxford English Dictionary (online ed. 2020); see also United
States v. Lange, 862 F.3d 1290, 1295 (11th Cir. 2017). The Sentencing
Commission adopted an interpretation of § 4B1.2 that is not
inconsistent with the guideline when it concluded that an offense that
forbids “aiding and abetting, conspiring, and attempting to”
manufacture, import, export, distribute, or dispense a controlled
substance is an offense that “prohibits” those activities. See U.S.S.G.
§ 4B1.2 cmt. n.1. A ban on attempting to distribute a controlled
substance, for example, “hinders” the distribution of the controlled
substance. See Lange, 862 F.3d at 1295. This conclusion accords with
the majority of circuits that have addressed this question, 1 and it


1 See United States v. Adams, 934 F.3d 720, 729 (7th Cir. 2019) (concluding
that Application Note 1’s “inclusion of conspiracy d[oes] not conflict with
the text of the Guideline itself”); United States v. Crum, 934 F.3d 963, 966 (9th
Cir. 2019); United States v. Mendoza‐Figueroa, 65 F.3d 691, 694 (8th Cir. 1995)

                                       6
underlies the decision in Tabb that the “purported distinction”
between Jackson’s holding that the Sentencing Commission had the
authority to include inchoate offenses within the definition of
“controlled substance offense” and the conclusion that Application
Note 1 is not inconsistent with the guideline is “without substance.”
949 F.3d at 87.

                                        B

       Richardson also argues that his conviction under 21 U.S.C.
§ 846 cannot serve as a predicate offense under Application Note 1
because Section 846 narcotics conspiracy has no overt act
requirement. This argument also contradicts our holdings in Tabb and
Jackson. See Tabb, 949 F.3d at 88 (“The text and structure of Application
Note 1 demonstrate that it was intended to include Section 846
narcotics conspiracy.”); Jackson, 60 F.3d at 133 (“[D]rug conspiracy
convictions pursuant to 21 U.S.C. [§] 846 ... qualify as controlled
substance offenses.”) (citing United States v. Whitaker, 938 F.2d 1551,
1553‐54 (2d Cir. 1991) (per curiam)). Accordingly, the district court




(en banc) (concluding that Application Note 1 “is a reasonable
interpretation of the career offender guidelines”); United States v. Smith, 54
F.3d 690, 693 (11th Cir. 1995); United States v. Piper, 35 F.3d 611, 617 (1st Cir.
1994) (concluding that Application Note 1 “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”); United States v.
Hightower, 25 F.3d 182, 187 (3d Cir. 1994). But see United States v. Havis, 927
F.3d 382, 386‐87 (6th Cir. 2019) (en banc) (“The text of § 4B1.2(b) controls,
and it makes clear that attempt crimes do not qualify as controlled
substance offenses.”); United States v. Winstead, 890 F.3d 1082, 1091 (D.C.
Cir. 2018) (“Section 4B1.2(b) presents a very detailed ‘definition’ of
controlled substance offense that clearly excludes inchoate offenses.”).

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did not err when it applied the career offender sentencing
enhancement.

                                  II

      Richardson also challenges the substantive reasonableness of
his sentence, arguing that the court assigned too much weight to his
criminal history and did not adequately account for his need for
mental health and substance abuse treatment. We conclude that
Richardson’s sentence is not substantively unreasonable because it is
not “manifestly unjust” and does not “shock the conscience.” Rigas II,
583 F.3d at 122‐24. The district court imposed a within‐Guidelines
sentence   after   considering   the     § 3553(a)   factors,   including
Richardson’s personal and criminal history and the need for the
sentence imposed. The district court observed that while Richardson
had experienced “terrible” family trouble as well as mental health and
substance abuse challenges, his past criminal conduct—including
drug trafficking, an escape from federal prison, and illegal gun
possession—was serious and persisted despite repeated intervention
by law enforcement. J. App’x 128‐34. In light of these circumstances,
the district court’s decision to sentence Richardson to 210 months’
imprisonment fell well within the range of permissible decisions. See
United States v. Thavaraja, 740 F.3d 253, 259 (2d Cir. 2014).
Accordingly, we conclude that Richardson’s sentence is substantively
reasonable.

                          CONCLUSION

      We      AFFIRM    the   district    court’s    judgment    because
Richardson’s sentence was both procedurally and substantively
reasonable.



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