United States v. Martez Smith

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 20-1117

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARTEZ L. SMITH,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 18-cr-20037 — Michael M. Mihm, Judge.

____________________

ARGUED OCTOBER 28, 2020 — DECIDED MARCH 3, 2021

____________________

Before RIPPLE, WOOD, and BRENNAN, Circuit Judges.

BRENNAN, Circuit Judge. Illinois law enforcement agents re-

ceived a tip from a confidential source claiming that Martez

Smith had been dealing methamphetamine in Mattoon, Illi-

nois. The agents conducted controlled buys between Smith

and the source, and in the course of the investigation, re-

quested a patrol officer stop Smith’s vehicle. During that stop,

the officer found marijuana, a marijuana grinder, and a fire-

arm in Smith’s vehicle. The officer arrested Smith and seized

2 No. 20-1117

the gun. A federal grand jury indicted Smith on one count of

distributing methamphetamine and one count of possessing

a firearm as a felon.

Represented by court-appointed counsel, Smith pleaded

guilty to both counts. He then sought to retract his guilty plea,

alleging ineffective assistance of counsel. The court denied

Smith’s motion to withdraw his guilty plea, rejected his re-

quest for an evidentiary hearing, and sentenced him on the

two counts. On appeal, Smith challenges the district court’s

denial of his ineffective assistance of counsel claim and his ca-

reer offender sentencing enhancement. We affirm the district

court’s decision in full.

I

A

In July 2018, Illinois law enforcement agents received a tip

from a confidential source, who claimed he had been purchas-

ing methamphetamine from Martez Smith in the Mattoon,

Illinois area for the past two months. Based on this infor-

mation, the agents arranged a series of controlled buys be-

tween Smith and the source.

The first controlled buy occurred on July 9, 2018. After the

transaction, the source returned to the agents and gave them

approximately 46 grams of “ice” methamphetamine that he

had just purchased from Smith. With a failed attempt in the

interim, the agents conducted another controlled buy on July

27. As instructed, the source text messaged Smith to purchase

three ounces of methamphetamine. Smith replied “yea” and

agreed on a time for the transaction. That day, the agents ob-

served Smith driving as if to avoid surveillance while en route

to the scheduled transaction and requested a nearby patrol

No. 20-1117 3

officer to pull him over. The officer identified Smith’s vehicle,

noticed it had “extremely dark window tinting,” and ordered

Smith to stop. When he attempted to measure the window

tint, the officer realized that the batteries of his tint meter had

failed, so he radioed other officers to bring him a new one.

During the approximately ten-minute wait, the officer

learned that Smith’s driver’s license had been suspended. He

asked Smith if he had any contraband in the vehicle. Smith

said no. The officer then searched the vehicle and found a

small amount of marijuana, a marijuana grinder, and a 9mm

pistol with a 30-round extended magazine attached. 1 In a later

interview, Smith admitted to possessing the firearm but de-

nied selling methamphetamine.

B

In August 2018, a federal grand jury indicted Smith on two

counts: (1) distribution of 50 grams or more of methampheta-

mine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)

(“Count 1”); and (2) possession of a firearm by a felon in vio-

lation of 18 U.S.C. § 922(g) (“Count 2”). Smith pleaded not

guilty to both counts.

The district court appointed Attorney Johanes Maliza to

represent Smith. With Maliza’s representation, Smith

changed his plea to guilty in November 2018. During the

change-of-plea hearing before the magistrate judge, the par-

ties agreed that, in addition to the felon-in-possession charge,

Smith would plead guilty only to the lesser-included offense

of distributing controlled substance between 5 and 50 grams

1Whether Smith consented to the vehicle search is disputed, but the

answer to that question does not affect our decision.

4 No. 20-1117

because the laboratory results revealed that Smith sold less

than 50 grams of methamphetamine.

The ensuing plea colloquy was thorough. Smith testified

under oath in response to the court’s questions. The magis-

trate judge asked Smith whether he had sufficient time to re-

view the case with his counsel, whether he was satisfied with

his counsel’s representation, and whether he discussed the

specific charges with his counsel. Smith answered “yes” to all

three questions and admitted under oath that he distributed

methamphetamine on July 9, 2018, and knowingly possessed

a firearm as a felon on July 27, 2018. The court then asked

Smith how he wanted to plead, to which Smith answered

“guilty” on both counts.

Following his guilty plea but before sentencing, Smith

filed two pro se motions seeking to withdraw his pleas based

on ineffective assistance of counsel. Among various claims,

Smith alleged that Maliza failed to investigate and to file a

motion to suppress the firearm found in his car. Simultane-

ously, Maliza moved to withdraw as counsel, citing “a direct

and irreconcilable conflict of interest” with Smith. The court

granted Maliza’s motion and appointed new counsel. By

counsel, Smith then moved to withdraw his guilty plea and

requested that the court hold an evidentiary hearing on

Maliza’s alleged ineffective assistance. The district court de-

nied both requests and proceeded to sentencing.

The presentence investigation report recommended a ca-

reer offender enhancement under U.S.S.G. § 4B1.1 for Smith’s

two prior convictions: a 2009 federal conviction for conspiring

to possess with intent to distribute cocaine in violation of

21 U.S.C. § 846 and a 2013 Indiana conviction for attempted

armed robbery. Smith objected to this enhancement, arguing

No. 20-1117 5

that his conspiracy conviction does not constitute a predicate

“controlled substance offense” as required by the provision.

Specifically, he asserted that the plain language of the Sen-

tencing Guidelines does not include inchoate offenses like

§ 846 narcotics conspiracy.

Relying on United States v. Adams, 934 F.3d 720 (7th Cir.

2019), the district court rejected Smith’s argument and held

that § 846 conspiracy constitutes a predicate “controlled sub-

stance offense.” It concluded that Smith qualified for the ca-

reer-offender enhancement under § 4B1.1. The district court

sentenced Smith to 214 months’ imprisonment on Count 1

and 120 months’ imprisonment on Count 2 to be served con-

currently. Smith timely appealed to this court.

II

A

Smith first challenges the district court’s denial of his mo-

tion to withdraw his guilty plea, which we review for an

abuse of discretion. United States v. Barr, 960 F.3d 906, 917 (7th

Cir. 2020).

A defendant may withdraw a guilty plea after the district

court accepts the plea, but before it imposes a sentence, by

showing “a fair and just reason for requesting the with-

drawal.” FED. R. CRIM. P. 11(d)(2)(B). Ineffective assistance of

counsel serves as a “fair and just” reason for withdrawing a

plea. See United States v. Graf, 827 F.3d 581, 583–84 (7th Cir.

2016); see also Hurlow v. United States, 726 F.3d 958, 967 (7th

Cir. 2013) (noting that a plea that resulted from ineffective as-

sistance of counsel cannot be knowing and voluntary). To es-

tablish ineffective assistance of counsel, a defendant must

show that his counsel rendered deficient performance and

6 No. 20-1117

that the deficiency prejudiced him. Strickland v. Washington,

466 U.S. 668, 688, 694 (1984). In other words, a defendant must

show that his counsel rendered objectively unreasonable per-

formance and that, but for counsel’s errors, the outcome

would have been different. Id. We need not address both de-

ficient performance and prejudice prongs “if the defendant

makes an insufficient showing on one.” Id. at 697; see Armfield

v. Nicklaus, 985 F.3d 536, 548 (7th Cir. 2021) (same).

In the guilty plea context, we apply the modified Strickland

analysis articulated in Hill v. Lockhart, 474 U.S. 52 (1985). See

Gish v. Hepp, 955 F.3d 597, 605 (7th Cir. 2020). Under Hill, the

deficient performance prong remains largely unchanged. A

defendant must show that his counsel rendered objectively

unreasonable performance and “performed seriously below

professional standards.” United States v. Williams, 698 F.3d

374, 386 (7th Cir. 2012). On the prejudice prong, a defendant

must show a “reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have in-

sisted on going to trial.” Lee v. United States, 137 S. Ct. 1958,

1965 (2017) (quoting Hill, 474 U.S. at 59). The prejudice in-

quiry into counsel’s failure to investigate “will depend on the

likelihood that discovery of the evidence would have led

counsel to change his recommendation as to the plea.” Hill,

474 U.S. at 59 (adding that “[t]his assessment, in turn, will de-

pend in large part on a prediction whether the evidence likely

would have changed the outcome of a trial”).

A guilty plea, however, “should not lightly be with-

drawn.” United States v. Brown, 973 F.3d 667, 715 (7th Cir.

2020). Courts must “not upset a plea solely because of post hoc

assertions from a defendant about how he would have

pleaded but for his attorney’s deficiencies.” Lee, 137 S. Ct. at

No. 20-1117 7

1967. We instead “look to contemporaneous evidence to sub-

stantiate a defendant’s expressed preferences” and only allow

a withdrawal if we are convinced that the defendant would

have pleaded differently. Id.

Smith alleges three deficiencies in Maliza’s performance:

(1) failure to investigate and file a motion to suppress the fire-

arm found in the car; (2) pressure to hastily plead guilty; and

(3) general unfamiliarity with the facts of the case. The district

court denied these claims as either lacking merit or otherwise

undermined by the record. We agree and analyze each of

Smith’s arguments in turn.

Motion to Suppress. When the alleged deficiency is based

on counsel’s failure to move to suppress evidence, a defend-

ant must “prove the motion was meritorious.” Long v. United

States, 847 F.3d 916, 920 (7th Cir. 2017) (internal quotation

marks omitted). But here any alleged deficiency by Maliza

matters only if Smith could show that suppressing the firearm

evidence likely would have changed the outcome of the trial.

Hill, 474 U.S. at 59.

Smith claims that a motion to suppress would have suc-

ceeded because the patrol officer did not have consent or a

warrant to search his vehicle. Warrantless searches are per se

unreasonable under the Fourth Amendment, unless an excep-

tion applies. United States v. Kizart, 967 F.3d 693, 695 (7th Cir.

2020) (citing Arizona v. Gant, 556 U.S. 332, 338 (2009)). The rec-

ord suggests that the automobile exception applies here. Un-

der the automobile exception, an officer may search a vehicle

without a warrant if there is probable cause. Kizart, 967 F.3d

at 695; see United States v. Sands, 815 F.3d 1057, 1061–62 (7th

Cir. 2015) (“A warrantless arrest is constitutionally permissi-

ble if supported by probable cause … .”). Probable cause

8 No. 20-1117

exists “if, given the totality of the circumstances, there is a fair

probability that contraband or evidence of a crime will be

found in a particular place.” United States v. Eymann, 962 F.3d

273, 286 (7th Cir. 2020) (internal quotation marks omitted).

The patrol officer here had probable cause to stop Smith

and search his vehicle. Law enforcement agents had already

conducted a controlled buy, and they had scheduled another

on the day of the arrest. The agents even had text message

evidence detailing the transaction planned for later that day.

Smith was also driving suspiciously moments before the of-

ficer stopped him and had illegally tinted windows on his car.

And although the officer may not have known all the facts

supporting probable cause, he was acting at the direction of

the agents who did. See United States v. Khan, 937 F.3d 1042,

1052 (7th Cir. 2019) (noting that the collective knowledge doc-

trine “permits a stop at the direction of, or based on infor-

mation relayed from, another law enforcement agency”); see

also United States v. Nicksion, 628 F.3d 368, 376–77 (7th Cir.

2010) (finding that the collective knowledge of law enforce-

ment provided ample probable cause for officers to stop and

arrest the defendant and search his vehicle). The totality of the

circumstances leading up to the stop demonstrates a fair

probability that Smith’s vehicle contained contraband. The of-

ficer therefore had probable cause to stop Smith and to search

his vehicle. Without more, Smith cannot establish that he

would have succeeded on his motion to suppress the firearm

evidence.

Time Pressure. Smith also contends that Maliza rendered

ineffective assistance by pressuring him to take the guilty

plea. He alleges Maliza did so in part by telling him that the

government would file a superseding indictment with an

No. 20-1117 9

additional charge if Smith did not plead guilty before the

grand jury reconvened. The district court dismissed Smith’s

claims as conclusory or otherwise undermined by the record

noting that “that there was no pressure for the defendant to

plead immediately.”

We give special weight to a defendant’s sworn testimony

in a Rule 11 plea colloquy. See Graf, 827 F.3d at 584 (“A de-

fendant’s motion to withdraw is unlikely to have merit if it

seeks to dispute his sworn assurances to the court.”). That tes-

timony is presumed true, and the defendant bears a heavy

burden to overcome this presumption. See United States v.

Chavers, 515 F.3d 722, 724 (7th Cir. 2008). Smith expressly

acknowledged during his plea colloquy that he had sufficient

time to discuss the case with Maliza. As the district court

found, the magistrate judge “was careful to give the defend-

ant several opportunities where he could have said that he

was being pressured … [and] sufficient opportunity to say

that he wanted more time.” At one point, Maliza even offered

to adjourn the hearing to allow time to file corrected infor-

mation, which cuts against Smith’s argument that his counsel

had rushed him to plead guilty.

Smith cannot show prejudice. He fails to demonstrate a

reasonable probability that, but for Maliza’s pressure, he

would not have pleaded guilty. The district court was correct

to reject this claim.

Counsel’s Lack of Familiarity. Smith next asserts Maliza ren-

dered ineffective assistance because he lacked familiarity with

the facts of the case, emphasizing that the public defender was

“confused and unfamiliar with the relevant facts.” To support

this claim, Smith points to a portion of the change-of-plea

hearing transcript where Maliza appears to fumble with his

10 No. 20-1117

words: “Again, Your Honor, I haven’t seen as much. There

was some stuff that I did—I don’t, I don’t think I noticed, but

the—certainly, the evidence that pertains to the ele-

ments … the essential elements of the crime, yes.” Smith also

complains that he “himself had to speak up to correct his at-

torney’s misrepresentations.”

Smith’s challenge falls short of demonstrating ineffective

assistance of counsel. “An ineffective assistance of counsel

claim cannot stand on a blank record, peppered with the de-

fendant’s own unsupported allegations of misconduct.”

United States v. Hodges, 259 F.3d 655, 660 (7th Cir. 2001). The

district court noted that Smith took Maliza’s statements “out

of context” and read “far too much into them.” The hearing

transcript shows that Maliza made the spotlighted statement

to confirm that the government presented evidence that met

the essential elements of the drug and firearm charges while

disagreeing with some of the details. Viewing the statement

in context, the district court recognized that Maliza actually

demonstrated familiarity with the case. There is no support in

the record for the assertion that Maliza made a misrepresen-

tation or that suggests his unfamiliarity with the case. The dis-

trict court therefore properly exercised its discretion to

conclude that Smith’s arguments lack record support and that

he was not prejudiced.

B

Smith insists that the district court erred by denying his

request for an evidentiary hearing to support his motion to

withdraw his guilty plea. We review the district court’s deci-

sion not to hold an evidentiary hearing for abuse of discretion,

see United States v. Jones, 381 F.3d 615, 618 (7th Cir. 2004), and

its “factual findings, including whether the defendant

No. 20-1117 11

knowingly and voluntarily entered the plea, for clear error.”

United States v. Perillo, 897 F.3d 878, 883 (7th Cir. 2018).

A motion to withdraw a plea does not automatically enti-

tle a defendant to an evidentiary hearing because “[w]hether

to hold a hearing on the plea’s validity is a matter left to the

trial court’s sound discretion.” United States v. Collins, 796 F.3d

829, 834 (7th Cir. 2015). To illustrate, an evidentiary hearing is

not required “if the petitioner makes allegations that are

vague, conclusory, or palpably incredible, rather than

detailed and specific.” Gaylord v. United States, 829 F.3d 500,

506–07 (7th Cir. 2016) (internal quotation marks omitted). A

district court need not hold an evidentiary hearing if the de-

fendant fails to offer substantial evidence “or if the allegations

advanced in support of the motion are conclusory or unrelia-

ble.” Collins, 796 F.3d at 834.

The district court did not abuse its discretion by denying

Smith’s request for an evidentiary hearing. The only argu-

ment that it found as “possibly not a conclusory allegation”

was the potential success of the motion to suppress. But the

district court explained that the government provided “the

uncontested proffer” of independent probable cause to stop

Smith and search his car. Because Smith’s motion to suppress

would not have been successful, no evidentiary hearing was

necessary.

III

Smith next challenges his career offender enhancement.

According to Smith, his prior conviction for conspiring to traf-

fic cocaine, in violation of 21 U.S.C. § 846, does not constitute

a predicate “controlled substance offense” under U.S.S.G.

§ 4B1.2. We review the district court’s application of the

12 No. 20-1117

Sentencing Guidelines de novo. United States v. Lewis, 842 F.3d

467, 476 (7th Cir. 2016).

We look first to the text of the guidelines provisions that

Smith disputes. Under § 4B1.1, a defendant is a career of-

fender if: (1) he was at least 18 years old when he committed

the offense; (2) the instant offense is a crime of violence or a

controlled substance offense; and (3) he “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). Section 4B1.2, in rele-

vant part, defines “controlled substance offense” as “an

offense under federal or state law … that prohibits the manu-

facture, import, export, distribution, or dispensing of a

controlled substance (or a counterfeit substance) or the pos-

session of a controlled substance (or a counterfeit substance)

with intent to manufacture, import, export, distribute, or dis-

pense.” U.S.S.G. § 4B1.2. Application Note 1 to § 4B1.2 defines

“controlled substance offense” to include aiding and abetting,

conspiring, and attempting to commit such offenses. U.S.S.G.

§ 4B1.2 cmt. n.1. Smith contends that Application Note 1 is an

improper expansion of § 4B1.2.

Courts treat the application notes to the Sentencing Guide-

lines like an agency’s interpretation of its own rules. See

Stinson v. United States, 508 U.S. 36, 44–45 (1993). In Stinson,

the Supreme Court held that courts must give application

notes “controlling weight.” Id. at 45 (quoting Bowles v. Semi-

nole Rock & Sand Co., 325 U.S. 410, 414 (1945)). A correspond-

ing application note is binding authority “unless it violates

the Constitution or a federal statute, or is inconsistent with, or

a plainly erroneous reading of, that guideline.” Id. at 38; see

United States v. Tate, 822 F.3d 370, 375 (7th Cir. 2016) (same).

We apply the application notes as “authoritative glosses on

No. 20-1117 13

the Guidelines, unless the notes conflict with the text.” United

States v. Raupp, 677 F.3d 756, 759 (7th Cir. 2012), overruled on

other grounds by United States v. Rollins, 836 F.3d 737 (7th Cir.

2016).

A split of authority exists among many of the circuits as to

whether courts are to defer to Application Note 1 when ap-

plying § 4B1.2. In United States v. Winstead, the D.C. Circuit

recognized a conflict between the text of § 4B1.2 and Applica-

tion Note 1. 890 F.3d 1082 (D.C. Cir. 2018). It applied the in-

terpretative canon expressio unius est exclusio alterius to note

that § 4B1.2 “presents a very detailed ‘definition’ of controlled

substance offense that clearly excludes inchoate offenses.” Id.

at 1091. Given that the text of § 4B1.2 does not expressly in-

clude inchoate offenses, the D.C. Circuit concluded that Ap-

plication Note 1 improperly expands the provision’s scope

and declined to recognize an attempt crime as a controlled

substance offense. Id. at 1091–92.

Similarly, the Sixth Circuit in United States v. Havis did not

extend the definition of controlled substance offense to in-

clude attempt crimes. 927 F.3d 382 (6th Cir. 2019) (en banc)

(per curiam). It emphasized that the application notes to the

Sentencing Guidelines “serve[] only to interpret the Guide-

lines’ text, not to replace or modify it.” Id. at 386 (emphasis in

original). Because Application Note 1 adds to § 4B1.2’s textual

definition, rather than interprets it, the Sixth Circuit found the

more expansive construction impermissible. Id. at 386–87. Fi-

nally, the Third Circuit concluded the same in United States v.

Nasir, 982 F.3d 144, 159–60 (3d Cir. 2020) (en banc). In addition

to the expressio unius argument, that court raised a separa-

tion-of-powers concern—namely, that deferring to the appli-

cation notes circumvents “the checks Congress put on the

14 No. 20-1117

Sentencing Commission.” Id. at 159. The Third Circuit “con-

clude[d] that inchoate crimes are not included in the defini-

tion of ‘controlled substance offenses’ given in section

4B1.2(b).” Id. at 160. Smith relies on these cases to support his

position.

Our court’s precedent holds otherwise, and we see no rea-

son here to diverge from it. In United States v. Adams, we held

that the term “controlled substance offense” encompasses in-

choate offenses. 934 F.3d at 729–30. There, the defendant chal-

lenged the sentencing enhancement under U.S.S.G. § 2K2.1,

which raises the base offense level for a felon-in-possession

conviction when the defendant also has a prior conviction for

a controlled substance offense. Id. at 727. Section 2K2.1’s Ap-

plication Note 1 references § 4B1.2’s Application Note 1 for

the definition of “controlled substance offense.” U.S.S.G.

§ 2K2.1 cmt. n.1 (noting that “‘[c]ontrolled substance offense’

has the meaning given that term in § 4B1.2(b) and Application

Note 1 of the Commentary to § 4B1.2”). We concluded that

§ 4B1.2’s Application Note 1 is authoritative and that “con-

trolled substance offense” includes inchoate offenses. Adams,

934 F.3d at 729–30. In reaching this conclusion, we relied on

Raupp, which deferred to Application Note 1 when applying

§ 4B1.2 and found no conflict between them. 677 F.3d at 759.

(“There cannot be a conflict because the text of § 4B1.2(a) does

not tell us, one way or another, whether inchoate offenses are

included or excluded.”). Several other circuits agree. See, e.g.,

United States v. Lange, 862 F.3d 1290, 1294–96 (11th Cir. 2017);

United States v. Nieves-Borrero, 856 F.3d 5, 9 (1st Cir. 2017);

United States v. Chavez, 660 F.3d 1215, 1228 (10th Cir. 2011);

United States v. Mendoza-Figueroa, 65 F.3d 691, 694 (8th Cir.

1995) (en banc).

No. 20-1117 15

Smith attempts to distinguish Adams from this case but to

no avail. He emphasizes that Adams dealt with a sentencing

enhancement under § 2K2.1, whereas here we address a sen-

tencing enhancement under § 4B1.1. But to distinguish Adams

would require us to find that there is a conflict between

§ 4B1.2 and Application Note 1 when interpreting § 4B1.1 but

that no such conflict exists when interpreting § 2K2.1. We can-

not reconcile Smith’s position with our holding in Adams.

That brings us to our final issue: does § 4B1.2’s Application

Note 1 encompass § 846 conspiracy under the categorical ap-

proach? The categorical approach asks courts to look to the

generic elements of a crime, rather than the facts underlying

how the crime was committed, when determining whether a

prior conviction is a “controlled substance offense.” United

States v. Smith, 921 F.3d 708, 712 (7th Cir. 2019). A “generic”

version of an offense means “the offense as commonly under-

stood.” Mathis v. United States, 136 S. Ct. 2243, 2247 (2016). “If

the elements of the crime of conviction are the same as, or nar-

rower than, the elements of the generic version of the offense,

the crime of conviction qualifies as a predicate offense.” Smith,

921 F.3d at 712 (citing Mathis 136 S. Ct. at 2247–48).

Smith thinks that under the categorical approach, his § 846

conspiracy conviction does not qualify as a predicate “con-

trolled substance offense.” He points to decisions from other

circuits that have concluded Application Note 1 does not in-

clude § 846 conspiracy. See, e.g., United States v. McCollum, 885

F.3d 300, 308–09 (4th Cir. 2018); United States v. Martinez-Cruz,

836 F.3d 1305, 1314 (10th Cir. 2016). These decisions found ge-

neric conspiracy to require an overt act in furtherance of the

conspiracy. Because § 846 lacks an overt-act requirement,

Smith asserts, it “criminalizes a broader range of conduct than

16 No. 20-1117

that covered by generic conspiracy.” He adds that a § 846 of-

fense does not fall within the ambit of § 4B1.2’s definition of

“controlled substance offense.”

The Second Circuit recently took a different approach in

United States v. Tabb, 949 F.3d 81 (2d Cir. 2020). The defendant

in Tabb argued that Application Note 1 covers only “generic”

conspiracy, and by implication, excludes the broader § 846

narcotics conspiracy. Id. at 88. The Second Circuit disagreed.

It first explained that generic conspiracy encompasses § 846

conspiracy because “[t]he essence of a conspiracy is an agree-

ment by two or more persons to commit an unlawful act.” Id.

Although it recognized that common law often required an

overt act as an element of a conspiracy offense, the Second

Circuit found the requirement unnecessary given that “Con-

gress has chosen to eliminate this requirement in the case of

several federal crimes, most notably narcotics conspiracy.” Id.

(citing United States v. Shabani, 513 U.S. 10, 14–15 (1994)). The

court concluded that reading Application Note 1 to cover

§ 846 narcotics conspiracy would best preserve the internal

consistency of the Sentencing Guidelines. Id. (noting that the

defendant’s reading would “require finding that term ‘con-

spiracy’ includes Section 846 narcotics conspiracy in some

parts of the guidelines, but not others” (citations omitted)).

Other circuits have drawn similar conclusions. See, e.g., United

States v. Rivera-Constantino, 798 F.3d 900, 903–94 (9th Cir.

2015); United States v. Rodriguez-Escareno, 700 F.3d 751, 753–54

(5th Cir. 2012).

We agree that Application Note 1 encompasses § 846 con-

spiracy. First, the plain language of Application Note 1 unam-

biguously includes conspiracy as a “controlled substance of-

fense.” U.S.S.G. § 4B1.2 cmt. n.1. We find no reason to

No. 20-1117 17

construe the word “conspiring” in Application Note 1 to ex-

clude § 846 conspiracy, especially given that an overt act is

not always a required element in the narcotics conspiracy con-

text.

Second, the narrow reading that Smith proposes would

lead to conflicting textual and structural consequences. Under

his reading, a § 846 conspiracy would constitute a controlled

substance offense when interpreting § 2K2.1, as we do in Ad-

ams, but not when interpreting § 4B1.1, as we do here. It

would also mean that the Sentencing Commission, when it

included the term “conspiring” in § 4B1.2’s Application Note

1, intended to exclude federal conspiracy from the federal Sen-

tencing Guidelines. See Tabb, 949 F.3d at 88 (citing Rivera-

Constantino, 798 F.3d at 904). That cannot be, so we are not

persuaded by Smith’s interpretation. Considering that “iden-

tical words and phrases within the same statute should nor-

mally be given the same meaning,” Powerex Corp. v. Reliant

Energy Servs., Inc., 551 U.S. 224, 232 (2007), we conclude that

reading § 4B1.2’s Application Note 1 to include § 846 conspir-

acy would best preserve the internal consistency of the

Sentencing Guidelines and avoid any textual or structural pit-

falls. Smith’s § 846 conspiracy conviction is thus a valid pred-

icate offense under § 4B1.1, and the district court correctly

applied the career offender enhancement to his sentence.

IV

For these reasons, we AFFIRM the district court’s decision.