United States District Court, D. New Jersey
defendant, Rayfael Roman, pled guilty to a criminal
Information charging that, from September 2017 through
February 7, 2018, he conspired to distribute and possess with
intent to distribute 500 grams or more of cocaine, contrary
to 21 U.S.C. § 841(a) & (b)(1)(B), in violation of
21 U.S.C. § 846. A presentence report was prepared in
which he was found, based on prior drug convictions, to be a
career offender. See U.S.S.G. § 4B1.1.
counsel lodged a number of objections to the Probation
Office's Guidelines calculation, and briefed those
objections in a sentencing memorandum to the court. (See DE
20 (submission notice).) The government filed a letter brief
in opposition (DE 21 (submission notice)).
February 13, 2019, the date originally scheduled for
sentencing, I heard oral argument on the Guidelines issues.
(See DE 22 (minutes).) Because the issues were
somewhat complex and merited discussion in a written opinion,
I reserved decision and adjourned sentencing until February
20, 2019, at 11 a.m. In the interim, the government filed a
supplemental letter brief (DE 23), to which the defendant
filed a letter response (DE 24). This Opinion is filed in
advance of sentencing, for the guidance of the parties.
Applicability of Career Offender Guideline, U.S.S.G. §
(a) A defendant is a career offender if (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.
§ 4B 1.1(a). For these purposes, a "controlled
substance offense" is one under a law which
"prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance, ... or
possession with intent to manufacture, import, export,
distribute, or dispense." U.S.S.G. § 4B 1.2(b).
Career Offender Guideline boosts the otherwise applicable
offense level and provides that the Criminal History Category
shall in all cases be VI:
(b) Except as provided in subsection (c), if the offense
level for a career offender from the table in this subsection
is greater than the offense level otherwise applicable, the
offense level from the table in this subsection shall apply.
A career offender's criminal history category in every
case under this subsection shall be Category VI.
OFFENSE STATUTORY MAXIMUM OFFENSE LEVEL*
(1) Life 37
(2) 25 years or more 34
*If an adjustment from §3E1.1 (Acceptance of
Responsibility) applies, decrease the offense level by the
number of levels corresponding to that adjustment.
U.S.S.G. § 4B 1.1(b) and text following.
Mr. Roman's offense of conviction carries a maximum
sentence of 40 years' imprisonment, the PSR's
application of the Career Offender guideline resulted in a
base offense level of 34. The adjusted offense level of 31,
together with the mandatory criminal history category of VI,
would yield an imprisonment range of 188 to 235 months.
21 U.S.C. § 846 conspiracy as a "controlled
the three numbered prerequisites for application of the
Career Offender Guideline is that "the instant offense
of conviction is a felony that is either a crime of violence
or a controlled substance offense." U.S.S.G. § 4B
1.1(a) (quoted above). A "controlled substance
offense" is an offense that (1) is punishable by a term
of imprisonment that exceeds one year and (2) "prohibits
the manufacture, import, export, distribution, or dispensing
of a controlled substance (or a counterfeit substance) or the
possession of a controlled substance (or a counterfeit
substance) with intent to manufacture, import, export,
distribute, or dispense." Id. § 4Bl.2(b).
Roman contends that his offense of conviction, a conspiracy
to distribute cocaine in violation of 21 U.S.C. § 846,
does not properly fall within the definition of a
"controlled substance offense" and is therefore
ineligible for application of the Career Offender Guideline.
Validity of definition in commentary -
is no dispute that the substantive offense of
distribution or possession with intent to distribute cocaine,
in violation of 21 U.S.C. § 841(a), is a
"controlled substance offense." See
U.S.S.G. § 4Bl.2(b) (quoted supra). That
commonsense conclusion is corroborated by the enabling
statute that is the source of the Career Offender Guideline.
That statute instructs the Commission to promulgate a
guideline that applies to, inter alia, "an
offense described in section 401 of the Controlled Substances
Act (21 USC 841) ... ." 28 U.S.C. § 994(h)(1). The
substantive § 841 offense, however, is not Roman's
offense of conviction; he pled guilty to a § 846
conspiracy having the § 841(a) offense as its object.
an authority than Judge William Pryor, the acting chair of
the Sentencing Commission, has authored an opinion holding
that the word "prohibits" in the definition of a
controlled substance offense must be read broadly.
"Prohibit," he wrote, means not only to forbid by
statute; it also means to "prevent" or
"hinder." United States v. Lange, 862 F.3d
1290, 1295 (11th Cir. 2017) (citing Oxford English
Dictionary and Webster's Second International
Dictionary). It follows that a controlled substance offense
"cannot mean only offenses that forbid conduct outright,
but must also include related inchoate offenses that aim
toward that conduct." Id. For example,
"[a] ban on conspiring to manufacture drugs hinders
manufacture even though it will ban conduct that is not
itself manufacturing." Id. Likewise, the §
846 conspiracy provision is aimed to hinder the object of
such a conspiracy, i.e., the distribution or
possession with intent to distribute narcotics.
not necessary, however, to resort to the dictionary, or to
indirect arguments. The commentary to the Career Offender
Guideline fills the gap left by the Guideline's failure
to mention conspiracy offenses. Application note 1 of the
commentary to U.S.S.G. § 4B1.2 defines a
"controlled substance offense" to include
"aiding and abetting, conspiring, and attempting to
commit such [drug or violent] offenses." Id.
question remains as to whether the definition in the
Guideline -commentary is valid-i.e., whether its
inclusion of a drug conspiracy, which is not explicitly named
in the enabling legislation or even the Guideline itself, is
ultra vires. That question has split the courts of
The circuit courts are sharply divided on the question of
whether a drug conspiracy conviction can be included as one
of the predicate offenses to establish a career offender
status under U.S.S.G. § 4B.l. Cf. United States v.
Price, 990 F.2d 1367 (D.C.Cir.1993); United States
v. Mendoza-Figueroa, No. 93-2867 (8th Cir. June 27,
1994) and United States v. Bellazerius, No. 93-3157
(5th Cir. June 17, 1994), holding that conspiracy conviction
cannot be included, with United States v. Heim, 15
F.3d 890 (9th Cir. 1994); United States v.
Damerville, No. 93-3235 (7th Cir. June 14, 1994), and
United States v. Hightower, No. 93-5117 [25 F.3d
182] (3d Cir. May 31, 1994), holding that conspiracy
conviction can be included.
United States v. Bryan,
35 F.3d 567 (6th Cir. 1994)
(remanding for district court consideration of ...