United States v. Williams

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

5-18-1999

USA v. Williams

Precedential or Non-Precedential:

Docket 97-5465

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Recommended Citation

"USA v. Williams" (1999). 1999 Decisions. Paper 133.

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Filed May 17, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-5465

UNITED STATES OF AMERICA

v.

ABDUL WILLIAMS,

Appellant

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(Dist. Ct. No. 96-cr-450)

District Judge: The Honorable Dickinson R. Debevoise

Argued: April 6, 1999

Before: SLOVITER and ALITO, Circuit Judges, and

ALARCON, Senior Circuit Judge*

(Opinion Filed: May 17, 1999)

Tonianne J. Bongiovanni

Chester M. Keller (argued)

Office of Federal Public Defender

972 Broad Street

Newark, NJ 07102

Attorney for Appellant

_________________________________________________________________

*The Honorable Arthur L. Alarcon, United States Senior Circuit Judge

for the Ninth Circuit, sitting by designation.

George S. Leone (argued)

Office of United States Attorney

970 Broad Street

Newark, NJ 07102

Attorney for Appellee

OPINION OF THE COURT

ALITO, Circuit Judge:

Abdul Williams appeals his conviction and sentence in a

criminal case. He argues that the District Court erroneously

sentenced him as a career offender under the Sentencing

Guidelines. For the reasons discussed below, we affirm

Williams's conviction and sentence.

I.

The facts in this case are relatively simple. Williams was

arrested and indicted for distributing heroin and

purchasing heroin with intent to distribute, in violation of

21 U.S.C. S 841(a)(1) and 18 U.S.C. S 2. He subsequently

entered into a plea agreement in which he agreed to plead

guilty to a two-count Information charging that he

knowingly and intentionally used a telephone to commit,

cause, and facilitate the distribution of heroin in violation

of 21 U.S.C. S 843(b). Williams pleaded guilty to both

counts.

At a sentencing hearing, the government asked the

District Court to sentence Williams as a career offender

pursuant to S 4B1.1 of the United States Sentencing

Guidelines ("U.S.S.G.").1 In making this request, the

government asserted (1) that Williams was at least 18 years

old when he committed the instant offense, (2) that the

offense was a "controlled substance offense," and (3) that

Williams had received at least two prior felony convictions

for "controlled substance offense[s]."

_________________________________________________________________

1. Except where indicated otherwise, all references are to the Sentencing

Guidelines in effect on July 17, 1997--the day Williams was sentenced.

2

Williams challenged only the second of these assertions,

arguing that his conviction under S 843(b) did not qualify as

a "controlled substance offense" for purposes of

determining career offender status under U.S.S.G. S 4B1.1.

The District Court rejected this argument, concluding that

Williams had committed a "controlled substance offense"

and was therefore a career offender for purposes of

U.S.S.G. S 4B1.1. Accordingly, the District Court sentenced

him to a 92 month term of imprisonment.

Williams appealed the District Court's decision to

sentence him as a career offender. Because this case

requires us to resolve a question of law, our review is

plenary. United States v. Sabarese, 71 F.3d 94, 95 n.1 (3d

Cir. 1996).

II.

Under the Sentencing Guidelines, a defendant can be

sentenced as 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. S 4B1.1. Williams does not dispute that he was at

least 18 years old at the time of the instant offense; nor

does he deny having received at least two prior felony

convictions for controlled substance offenses. See Br. for

Appellant at 11 ("[I]t is undisputed that thefirst and third

prongs are met."). Accordingly, the only question before us

is whether Williams's 21 U.S.C. S 843(b) conviction can be

considered a "controlled substance offense" for purposes of

U.S.S.G. S 4B1.1.

Williams raises two arguments in support of his

contention that it cannot. First, he argues that"the plain

language of [U.S.S.G. S 4B1.2] and its commentary

demonstrate that . . . a conviction [under S 843(b)] is not"

a "controlled substance offense" for purposes of

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determining career offender status. Br. for Appellant at 9.

Second, he argues that the Sentencing Commission's

definition of "controlled substance offense" is ambiguous

and must therefore be construed in his favor. For the

reasons discussed below, we disagree.

A. The Guidelines define a "controlled substance offense"

as "an offense under a federal or state law prohibiting 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. S 4B1.2(2)

(emphasis added). Thus, a crime constitutes a "controlled

substance offense" if the law creating it prohibits at least

one of the activities enumerated in S 4B1.2(2).2 Id.

Therefore, we must determine whether S 843(b) prohibits

at least one of the activities enumerated in S 4B1.2(2).

Section 843(b) provides that

It shall be unlawful for any person knowingly or

intentionally to use any communication facility in

committing or in causing or facilitating the commission

of any acts constituting a felony under any provision of

this [control and enforcement] subchapter or[the

import and export] subchapter . . . of this [drug abuse

and prevention] chapter.

21 U.S.C. S 843(b). Many of the provisions referenced in

S 843(b) prohibit "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. S 4B1.2(2). See e.g., 21 U.S.C. S 841(a) (prohibiting

the manufacture, distribution, and dispensing of controlled

substances, and possession of controlled substances with

_________________________________________________________________

2. Because inchoate drug crimes are "offense[s] under a . . . law

prohibiting 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,"

they must be considered "controlled substance offenses." U.S.S.G.

S 4B1.2 Commentary, Application Note 1 ("The term[ ] . . . `controlled

substance offense' include[s] aiding and abetting, conspiring, and

attempting to commit such offenses."). Id.

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intent to distribute); 21 U.S.C. S 952 (prohibiting the

importation of controlled substances); 21 U.S.C. S 953

(prohibiting the export of controlled substances).

Consequently, many of the offenses that can give rise to a

S 843(b) conviction involve "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. S 4B1.2(2). See e.g., 21 U.S.C. S 841(b)

(prescribing penalties for the manufacture, distribution,

and dispensing of controlled substances, and for possession

of controlled substances with intent to distribute); 21

U.S.C. S 960 (prescribing penalties for the unlawful import

and export of controlled substances); see also United States

v. Johnstone, 856 F.2d 539, 543 (3d Cir. 1988) ("The

occurrence of [an] underlying drug felony is a fact

necessary to finding a violation of S 843(b)."). Where such

an offense provides the basis for a particular S 843(b)

conviction, that conviction must be considered "an offense

under a . . . law prohibiting 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. S 4B1.2(2).

Stated differently, where a particular S 843(b) conviction

establishes that the defendant "committ[ed]," "caus[ed]," or

"facilitat[ed]" one of the acts enumerated in S 4B1.2(2), that

conviction qualifies as a "controlled substance offense" for

purposes of determining career offender status. 3 The three

_________________________________________________________________

3. We avoid concluding that all S 843(b) convictions are "controlled

substance offense[s]" because a defendant could be convicted under

S 843(b) without engaging in any of the activities enumerated in

S 4B1.2(2). For example, in certain circumstances, the mere possession

of a controlled substance can be considered a felony under 21 U.S.C.

S 844(a). 21 U.S.C. S 844(a) ("[I]f [a person] commits [the] offense[of

possession of a controlled substance] after a prior conviction or

convictions under this subsection have become final, he shall be

sentenced to a term of imprisonment of not more than 2 years, a fine of

not more than $10,000, or both."). Under those circumstances, a

defendant could conceivably be convicted under S 843(b) for using a

telephone to facilitate the mere possession of a controlled substance.

5

Courts of Appeals that have confronted this issue have

reached similar conclusions.4 See United States v. Mueller,

112 F.3d 277, 280-83 (7th Cir. 1997) ("By its plain terms,

the underlying elements of 21 U.S.C. S 843(b) constitute a

`controlled substance offense.' "); United States v. Walton,

56 F.3d 551, 555-56 (4th Cir. 1995) ("The distribution of

cocaine is clearly a [`controlled substance offense'] . . . .");

United States v. Vea-Gonzalez, 999 F.2d 1326, 1329 (9th

Cir. 1992) ("[B]ecause section 843(b) effectively prohibits

the same conduct as is prohibited by `controlled substance

offenses,' the statute is a controlled substance offense for

purposes of the career offender guideline."); cf. United

States v. Mankins, 135 F.3d 946, 949 (5th Cir. 1998)

(concluding that S 843(b) is a "felony drug offense" under 21

U.S.C. S 841(b)(1)(B)(viii) because it "prohibits drug

distribution").

The offense underlying Williams's S 843(b) conviction was

_________________________________________________________________

Such a conviction would not constitute a "controlled substance offense"

because simple possession is not "an offense under a . . . law prohibiting

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. S 4B1.2(2).

4. We are not aware of a single instance in which a court has concluded

that a S 843(b) conviction cannot qualify as a"controlled substance

offense" for purposes of determining career offender status. Aware of the

dearth of case law supporting his argument, Williams cites several cases

involving crimes that clearly do not constitute "controlled substance

offense[s]." See United States v. Dolt, 27 F.3d 235 (6th Cir. 1994)

(concluding that a conviction under Florida's solicitation statute did not

qualify as a "controlled substance offense"); United States v. Baker, 16

F.3d 854 (8th Cir. 1994) (concluding that a conviction under 21 U.S.C.

S 856 was not a "controlled substance offense" where the underlying

offense was mere possession of a controlled substance); United States v.

Wagner, 994 F.2d 1467 (10th Cir. 1993) (concluding that possession of

a precursor chemical with intent to manufacture a controlled substance

was not a "controlled substance offense"); United States v. Liranzo, 944

F.2d 73 (2d Cir. 1991) (concluding that a conviction under New York's

criminal facilitation statute did not qualify as a"controlled substance

offense"). Because these cases do not pertain toS 843(b) convictions,

they do not advance Williams's argument.

6

the distribution of heroin in violation of 21 U.S.C.S 841(a).

See Plea Agreement With Abdul Williams, App. at 22 ("The

underlying offense is the distribution of heroin."). Without

question, the distribution of heroin in violation of S 841(a)

is "an offense under a . . . law prohibiting the . . .

distribution . . . of a controlled substance . . . ." U.S.S.G.

S 4B1.2(2). Williams's S 843(b) conviction must therefore be

considered a "controlled substance offense" for purposes of

determining career offender status.

B. In the alternative, Williams argues that S 4B1.2(2) is

ambiguous, and asks us to invoke the rule of lenity to

resolve the ambiguity in his favor. Br. for Appellant at 22-

24; see e.g., Rewis v. United States, 401 U.S. 808, 812

(1971) (explaining that the rule of lenity dictates that

"ambiguity concerning the ambit of criminal statutes

should be resolved in favor of lenity [to the defendant].").

However, "because there is nothing ambiguous" about

S 4B1.2(2), "the rule of lenity does not apply." United States

v. Johnson, 155 F.3d 682, 685 (3d Cir. 1998).

Moreover, even if we were to conclude that the

Sentencing Guidelines' definition of "controlled substance

offense" was ambiguous, we would still be compelled to

affirm. Several months after Williams was sentenced, the

Sentencing Commission amended the commentary to

S 4B1.2.5 As amended, the commentary resolves any

ambiguity that may have existed when Williams was

sentenced, explaining that

Using a communications facility in committing,

causing, or facilitating a drug offense (21 U.S.C.

S 843(b)) is a "controlled substance offense" if the

offense of conviction established that the underlying

offense (the offense committed, caused, or facilitated)

was a controlled substance offense.

U.S.S.G. App. C, Amend. 568 (effective Nov. 1, 1997)

(currently designated as U.S.S.G. S 4B1.2 Commentary,

Application Note 1)("Amendment 568").

_________________________________________________________________

5. Williams was sentenced on July 14, 1997. The amendment became

effective November 1, 1997.

7

It is beyond dispute that the offense underlying

Williams's S 843(b) conviction was the distribution of heroin

in violation of 21 U.S.C. S 841. Without question, the

distribution of heroin is a "controlled substance offense."

Therefore, if we give Amendment 568 retrospective effect,

we must affirm.

Williams argues that because Amendment 568 became

effective after he was sentenced, "it has no application to

this appeal except to show that it was not at all clear at the

time he was sentenced that [a S 843(b) conviction]" could be

considered a "controlled substance offense." Br. for

Appellant at 9, n.5. We reject this argument inasmuch as

it ignores "the established principle that a post-sentencing

amendment to a sentencing guideline or its comments

should be given effect if it `clarifies' the guideline or

comment in place at the time of sentencing." United States

v. Marmolejos, 140 F.3d 488, 490 (3d Cir. 1998).

Amendment 568 "does not overrule prior constructions of

the Guideline." United States v. Bertoli, 40 F.3d 1384, 1405

(3d Cir. 1994) (internal quotations omitted). See section IIA,

infra. Nor does it "effect[ ] a substantive change in the law."

Marmolejos, 140 F.3d at 490. Rather, it "confirms our

reading of the Guideline," thereby "clarif[ying]" S 4B1.2's

definition of "controlled substance offense." Bertoli, 40 F.3d

at 1405. See section IIA, supra. Therefore, we can apply

Amendment 568 retrospectively without violating the ex

post facto clause. Bertoli, 40 F.3d at 1405.

Amendment 568 unquestionably resolves this dispute in

favor of the government. Thus, even if we were to conclude

that the Sentencing Guidelines' definition of"controlled

substance offense" was ambiguous when Williams was

sentenced, we would still affirm.

III.

For the foregoing reasons, we affirm.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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