United States Court of Appeals For the First Circuit No. 09-2495
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS DÁVILA-FÉLIX, a/k/a CARLOS MOÑA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lipez, Ripple,* and Howard, Circuit Judges.
Ignacio Fernández de Lahongrais, was on brief for appellant. Ilianys Rivera Miranda, United States Attorney, with whom Rosa Emilia Rodriguez-Velez, United States Attorney, Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, and Luke Cass, Assistant United States Attorney, were on brief for appellee.
December 13, 2011
* Of the Seventh Circuit, sitting by designation. RIPPLE, Circuit Judge. In this direct appeal,1
Carlos Dávila-Félix seeks reversal of the sentence imposed by the
United States District Court for the District of Puerto Rico.2
In March 2009, a jury found Mr. Dávila-Félix guilty of
using force and intimidation to rob a bank insured by the Federal
Deposit Insurance Corporation (“FDIC”), in violation of 18 U.S.C.
§ 2113(a), (d), and knowingly brandishing a firearm during the
commission of a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). At the sentencing hearing, the district court
concluded that Mr. Dávila-Félix qualified for a mandatory life
sentence under 18 U.S.C. § 3559(c)(1). In addition, the court
determined that he qualified as a career offender under U.S.S.G.
§ 4B1.1. The court ultimately sentenced Mr. Dávila-Félix to life
imprisonment for the bank robbery offense and 84 months’
imprisonment for the weapons offense, to be served consecutively.
The court also imposed a five-year term of supervised release for
each conviction, to be served concurrently.
We hold that the record does not support the imposition
of a life sentence under the federal “three strikes” provision,
18 U.S.C. § 3559(c)(1). Nor does the record support the imposition
of a sentence under the career offender provision of the United
1 Our jurisdiction is predicated on 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). 2 The jurisdiction of the district court was predicated on 18 U.S.C. § 3231.
-2- States Sentencing Guidelines. See U.S.S.G. § 4B1.1. Accordingly,
we reverse the judgment of the district court to the extent that it
imposed such a sentence and remand the case to permit the
imposition of a new sentence.
I
BACKGROUND
During a six-month period in 2003, Mr. Dávila-Félix
participated in a series of armed bank robberies in and around
San Juan, Puerto Rico. These robberies took place on May 9, July
9, July 24, September 8, October 17 and November 3. In March 2004,
he was arrested by commonwealth authorities and charged, under
commonwealth law, for five of the six armed robberies and related
weapons offenses. Notably, he was not charged with the robbery or
weapons offense that took place on September 8, 2003.
Mr. Dávila-Félix cooperated with the authorities and ultimately
pleaded guilty to the charged offenses. On April 5, 2004, he was
sentenced by the Commonwealth to six years’ imprisonment on each of
the robbery convictions and to five years for the weapons-related
offenses, all to be served concurrently.
On April 30, 2008, four years after he was convicted and
sentenced for the initial robbery charges, and ten months after he
was released from prison, Mr. Dávila-Félix was indicted on federal
bank robbery and weapons charges in connection with the September
8, 2003 robbery of First Bank of Puerto Rico--the only robbery that
-3- the Commonwealth had not included as part of the original March
2004 charges.
Prior to trial, the Government filed an information in
accordance with 21 U.S.C. § 851(a)(1),3 notifying the district
court and Mr. Dávila-Félix of its intention to seek a mandatory
life sentence under 18 U.S.C. § 3559(c)(1) based upon his prior
convictions, which included felony drug offenses as well as violent
crimes. In particular, the information included Mr. Dávila-Félix’s
prior convictions for the following offenses: (1) May 26, 1993
convictions for second-degree murder, robbery and two weapons
violations; (2) June 25, 1993 conviction for two violations of
Article 401 of the Controlled Substances Act of Puerto Rico; (3)
3 The statute provides, in pertinent part:
No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.
21 U.S.C. § 851(a)(1).
Mr. Dávila-Félix provides a cursory argument regarding the fact that the Government’s information misstated that the September 8, 2003 offense for which he was indicted was committed after the other convictions listed in the information. We do not need to address this issue because we conclude that the district court improperly sentenced Mr. Dávila-Félix under 18 U.S.C. § 3559(c)(1); however, we note that Mr. Dávila-Félix failed to allege any confusion or prejudice derived from this error.
-4- July 20, 2000 conviction for a violation of Article 404 of the
Controlled Substances Act of Puerto Rico, reduced to “attempted
Article 404”; and (4) April 5, 2004 convictions for bank robbery
and weapons violations, all under Puerto Rico law.4
In March 2009, the jury found Mr. Dávila-Félix guilty of
robbing a bank insured by the FDIC, by use of force and
intimidation, in violation of 18 U.S.C. § 2113(a), (d), and
brandishing a firearm during the commission of the robbery, a crime
of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
The district court sentenced Mr. Dávila-Félix to a life
sentence. Although the record is less than clear, it appears that
the court based this determination on the federal three strikes
provision, 18 U.S.C. § 3559(c)(1). The court also noted that a
life sentence was appropriate under the Sentencing Guidelines. In
reaching its determination under the three strikes provision, the
court did not consider Mr. Dávila-Félix’s June 25, 1993 and July
20, 2000 convictions for drug-related offenses; instead, it relied
explicitly upon his May 26, 1993 and April 5, 2004 violent felony
convictions as the two predicate offenses.
4 The Government and the district court recognize each of these sets of convictions as one prior conviction for purposes of the career offender guideline. Section 4A1.2(a)(2) of the Sentencing Guidelines provides that prior sentences are to be treated as one sentence for purposes of criminal history if “(A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day.”
-5- In calculating the advisory range under the Sentencing
Guidelines, the court began with a base offense level of 20. After
applying an additional three-level increase based upon the
circumstances surrounding the offense, the court arrived at a total
offense level of 23 and a Criminal History Category of V, which
yielded a guidelines imprisonment range of 84–105 months. The
district court then classified Mr. Dávila-Félix as a career
offender pursuant to U.S.S.G. § 4B1.1(a) on the ground that he had
“two prior convictions of crimes of violence.” Sent. Tr., 41. The
career offender enhancement resulted in a total offense level of 37
and a Criminal History Category of VI, which corresponded to a
guidelines range of 360 months to life. This enhancement,
therefore, increased Mr. Dávila-Félix’s maximum within-guidelines
sentence from 105 months to life imprisonment.
The district court ultimately sentenced Mr. Dávila-Félix
to life imprisonment for bank robbery and 84 months’ imprisonment
for the weapons offense, to be served consecutively. In addition,
the court ordered that Mr. Dávila-Félix be placed in supervised
release for a term of five years for each conviction, to be served
concurrently, should he ever be released.
II
DISCUSSION
Mr. Dávila-Félix submits that the district court, in
relying upon his April 2004 convictions, erred by determining that
-6- he qualified for a life sentence under 18 U.S.C. § 3559(c)(1). He
further contends that the court erred by treating the April 2004
convictions as a predicate offense under the career offender
provision. We discuss each of Mr. Dávila-Félix’s challenges to his
sentence in turn.5
A.
We first examine whether the district court correctly
determined that Mr. Dávila-Félix was subject to mandatory life
imprisonment under the federal “three strikes” provision. See
18 U.S.C. § 3559(c)(1). We review this question de novo. See
United States v. DeLuca, 137 F.3d 24, 39 (1st Cir. 1998).
1.
Mr. Dávila-Félix submits that the plain language of
§ 3559(c)(1) requires that the instant offense, or third strike, be
committed after the defendant’s conviction for the second strike,
5 Mr. Dávila-Félix makes a supplemental argument in a Rule 28(j) letter that the “except” clause of 18 U.S.C. § 924(c)(1)(A) exempts him from a mandatory consecutive sentence for violating § 924(c) because he also received a greater mandatory minimum sentence on a different count of conviction--a mandatory term of life imprisonment based upon his robbery conviction. This argument was not made in the defendant’s opening brief and, therefore, is waived. See United States v. Coplin, 463 F.3d 96, 102 n.6 (1st Cir. 2006); United States v. Nason, 9 F.3d 155, 163 (1st Cir. 1993). In any event, Mr. Dávila-Félix’s additional argument has been foreclosed by the Supreme Court’s decision in Abbott v. United States, 131 S. Ct. 18, 23 (2010), in which the Court held “that a defendant is subject to a mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction.”
-7- in this case the April 2004 convictions. He asserts that, because
the September 8, 2003 robbery took place before the April 5, 2004
convictions, the district court improperly treated the April 2004
convictions as a second strike under the statute.
The Government maintains that the district court properly
treated Mr. Dávila-Félix’s April 2004 convictions as a second
strike under the statute because § 3559(c)(1) only requires that
the first and second strikes be sequential.
In resolving this question of statutory interpretation,
we begin with the plain language of the statute.6 Here, the
statute reads, in relevant part:
Notwithstanding any other provision of law, a person who is convicted in a court of the United States of a serious violent felony shall be sentenced to life imprisonment if–
(A) the person has been convicted (and those convictions have become final) on separate prior occasions in a court of the United States or of a State of--
(i) 2 or more serious violent felonies; or
(ii) one or more serious violent felonies and one or more serious drug offenses; and
6 See United States v. Godin, 534 F.3d 51, 56 (1st Cir. 2008); see also Staples v. United States, 511 U.S. 600, 605 (1994) (recognizing that the language of a criminal statute is the starting point of the court’s interpretation).
-8- (B) each serious violent felony or serious drug offense used as a basis for sentencing under this subsection, other than the first, was committed after the defendant’s conviction of the preceding serious violent felony or serious drug offense.
18 U.S.C. § 3559(c)(1) (emphasis added).
It is undisputed that, according to the plain language of
§ 3559(c)(1)(B), the second “violent felony or serious drug offense
used as a basis for sentencing” must have been committed after the
first conviction. The Government nevertheless asserts that this
requirement only extends to the second offense. In its view of the
sequencing requirement in subsection (c)(1)(B), the phrase “other
than the first” should be understood to mean that the second
offense must be committed after the first conviction, but the
instant offense, for which the defendant would face a mandatory
term of life imprisonment, could have been committed at any time.
We cannot agree with this interpretation; it is simply
contrary to the plain language of the statute. The instant
offense, which is alleged to constitute the third strike under the
statute and serves as the trigger for the mandatory life sentence
under § 3559(c)(1), is a “serious violent felony or serious drug
offense” which the sentencing court “used as a basis for
sentencing.” In other words, it is precisely this third strike
that triggers the mandatory sentencing provisions. The instant
-9- offense, therefore, must be committed after the defendant’s
conviction for the preceding offense.
Although the plain language of the statute suffices, we
note in passing that the legislative history also supports
Mr. Dávila-Félix’s contention that Congress intended a sequential
approach to the three strikes law. The House Report explains that
subsection (c) “mandates that each serious violent felony or
serious drug offense used as a basis for sentencing under
[subsection (c)], other than the crime for which the conviction
became the defendant’s first ‘strike’, be committed after the
defendant’s conviction for the preceding ‘strike.’” H.R. Rep. No.
103-463, at 9 (1994), 1994 WL 107574. The Report explicitly refers
to each strike and suggests that a “defendant’s conviction of the
preceding serious violent felony or serious drug offense” in the
latter portion of subsection (c)(1)(B) specifically refers to each
strike--to include the third strike, or instant offense. Id. at 5.
Notably, a review of other sentencing enhancements
similar to the three strikes provision also supports
Mr. Dávila-Félix’s interpretation of the language of the statute.
See United States v. Luna-Diaz, 222 F.3d 1, 4–5 (1st Cir. 2000)
(examining related statutes and determining that they supported the
court’s conclusion with respect to the language of the statute).
In addition to the sequential approach taken in the career offender
provision of the Sentencing Guidelines, which contains language
-10- very similar to the federal three strikes law, see discussion infra
pp. 15–17, we recently acknowledged that a sequential approach is
required under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e). See United States v. Pratt, 568 F.3d 11, 15 (1st Cir.
2009) (explaining that, in order to establish a violation of
18 U.S.C. § 922(g)(1), the government must prove, among other
things, that “the defendant had been convicted of a felony prior to
his possession of the firearm”). Additionally, in 21 U.S.C.
§ 841(b)(1)(A), which provides for a sentencing enhancement for
repeat drug offenders, Congress explicitly adopted a sequential
approach: “If any person commits such a violation after a prior
conviction for a felony drug offense has become final, such person
shall be sentenced to a term of imprisonment which may not be less
than 20 years and not more than life imprisonment . . . .” The
district court therefore erred in treating Mr. Dávila-Félix’s April
2004 convictions as predicate offenses under § 3559(c)(1).
2.
On the record before us, Mr. Dávila-Félix’s June 1993 and
July 2000 drug convictions identified in the information cannot
serve as a “serious drug offense” for the purposes of § 3559(c)(1)
such that they would qualify as a second strike under the statute.7
7 On appeal, the Government confines its argument with respect to § 3559(c) to one of statutory interpretation. We therefore note that the Government does not address whether Mr. Dávila-Félix's prior drug convictions constitute predicate offenses under the federal three strikes provision. Nevertheless, in the interest of
-11- In order to qualify as “serious drug offenses,” Mr. Dávila-Félix’s
convictions must have been for conduct that involved a drug
quantity sufficient to be punishable under sections 841(b)(1)(A),
848, or 960(b)(1)(A) of Title 21. See 18 U.S.C. § 3559(c)(2)(H).
In July 2000, Mr. Dávila-Félix was convicted for a
violation of Article 404 of the Controlled Substances Act of Puerto
Rico, which provides, in relevant part, that it is “unlawful for
any person, knowingly or intentionally, to possess any controlled
substance, unless such substance was obtained directly, or pursuant
to a valid prescription or order from a practitioner, while acting
in the course of his professional practice, or except as authorized
by this chapter.” P.R. Laws Ann. tit. 24, § 2404(a). Because,
unlike the predicate offenses in § 3559(c), the statute of
conviction prohibits only simple possession and makes no mention of
drug quantity, this conviction does not fall within the definition
of a “serious drug offense” under § 3359(c). See 18 U.S.C.
§ 3559(c)(2)(H).
In June 1993, Mr. Dávila-Félix was convicted for two
violations of Article 401 of the Controlled Substances Act of
Puerto Rico, which provides, in pertinent part:
(a) Except as authorized by this chapter, it shall be unlawful for any person knowingly or intentionally:
completeness, we examine whether the drug convictions listed in the Government's information may substitute as predicate offenses under the statute.
-12- (1) To manufacture, distribute, dispense, transport or conceal, or possess with the intent to manufacture, distribute, dispense, transport or conceal a controlled substance.
(2) To produce, distribute, or dispense, transport or conceal, or possess with the intent to distribute or dispense, transport or conceal an adulterated substance.
P.R. Laws Ann. tit. 24, § 2401.
Even if we were to assume that the commonwealth court
records were sufficient to establish that Mr. Dávila-Félix was
convicted of distribution or possession with intent to distribute,
as required by 21 U.S.C. § 841(b)(1)(A), rather than concealment,
which is not a qualifying offense, see discussion infra pp. 20-21,
they would not be sufficient to establish that Mr. Dávila-Félix’s
June 1993 convictions constitute a “serious drug offense” under
§ 3559(c)(2)(H). As the Government appeared to concede at
sentencing, § 2401 of the Puerto Rican Code establishes fixed
penalties based on drug type and the circumstances of the offense,
rather than drug quantity, and there is, therefore, no indication
that the offense would have been punishable under § 841(b)(1)(A).
Accordingly, neither drug conviction qualifies as a “serious drug
offense” for the purposes of § 3559(c)(1).
-13- B.
In addition to determining that Mr. Dávila-Félix
qualified for a mandatory life sentence under the three strikes
provision, the district court also determined the sentence it would
impose under the Sentencing Guidelines. In so doing, the court
classified Mr. Dávila-Félix as a career offender based upon two
prior convictions for crimes of violence. Before us,
Mr. Dávila-Félix contends, and the Government concedes, that the
sentencing court improperly applied the career offender guideline
because the September 8, 2003 robbery took place before he was
convicted and sentenced, on April 5, 2004, for what the court
deemed to be his second “prior felony conviction” under § 4B1.1.
“Whether a prior conviction qualifies as a predicate offense under
U.S.S.G. § 4B1.1 is a question of law that we review de novo.”
United States v. Almenas, 553 F.3d 27, 31 (1st Cir. 2009).8
Under the Guidelines, a defendant is classified as a
career offender if the following three criteria are met:
8 The Government argues that, because Mr. Dávila-Félix did not object to his designation as a career offender in his sentencing memorandum or during the sentencing hearing itself, this issue has been waived. We construe the Government’s subsequent motion to remand for resentencing, filed after both parties had submitted their briefs, as a concession that this issue is entitled to at least plain error review. We therefore conclude that the Government’s action amounts to a waiver of its previously asserted waiver argument with respect to Mr. Dávila-Félix’s designation as a career offender. See United States v. Walker, 538 F.3d 21, 23 (1st Cir. 2008); United States v. Sagendorf, 445 F.3d 515, 516 (1st Cir. 2006).
-14- (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.
U.S.S.G. § 4B1.1(a); see also Almenas, 553 F.3d at 31. It is the
third criterion that is at issue here.
The district court took the view that the third
requirement was fulfilled if the defendant had been convicted of
two qualifying offenses prior to sentencing in the instant offense.
The parties now agree that the district court’s reading of the
third requirement is erroneous and that the reading adopted by the
Second Circuit in United States v. Chartier, 933 F.2d 111, 113-15
(2d Cir. 1991), which requires that a defendant be convicted of two
qualifying prior offenses prior to the commission of the instant
offense, is consistent with the language of the Guidelines.
The parties are correct. Again, the plain language of
the Guidelines provides the basis for our decision. Under the
Guidelines, “The term ‘two prior convictions’ means . . . the
defendant committed the instant offense of conviction subsequent to
sustaining at least two felony convictions of either a crime of
violence or a controlled substance offense.” U.S.S.G. § 4B1.2(c)
(emphasis added). The fact that the September 8, 2003 robbery, the
“instant offense,” took place before Mr. Dávila-Félix was convicted
-15- on April 5, 2004 for the string of robberies does not fit within
the definition of “two prior felony convictions” provided in
§ 4B1.2(c). Given the plain language of the career offender
guideline, the district court improperly considered the April 2004
convictions to be a “prior felony conviction.”
Further, despite the Government’s argument to the
contrary, Mr. Dávila-Félix’s June 25, 1993 drug convictions do not
constitute a “controlled substance offense,” which also might
qualify as a second predicate offense for purposes of the career
offender provision. See U.S.S.G. § 4B1.2(b). On the record before
us, the information presented regarding these drug convictions
simply does not contain the requisite information that would permit
a court to determine whether they indeed constitute “controlled
substance offenses” as defined by U.S.S.G. § 4B1.2(b).
The Government bears the burden of establishing that a
prior conviction qualifies as a predicate offense for sentencing
enhancement purposes. See United States v. Bryant, 571 F.3d 147,
153 (1st Cir. 2009). Here, with respect to Mr. Dávila-Félix’s
June 1993 drug convictions, the Government provided certified
copies of the judgments, which imposed concurrent sentences of ten
years for two violations of Article 401 of the Controlled
Substances Act of Puerto Rico. See United States v. McKenzie, 539
F.3d 15, 18–19 (1st Cir. 2008) (noting that “[t]he Government may
satisfy its burden by producing a certified copy of the conviction
-16- or an equivalent proffer”). However, the fact that the Government
“sufficiently proved” the existence of the June 1993 drug
convictions “does not . . . end our inquiry.” United States v.
Jimenez, 512 F.3d 1, 7 (1st Cir. 2007). We also must consider
whether the underlying offense qualifies as a “controlled substance
offense” within the meaning of the guideline. See id. at 7;
U.S.S.G. § 4B1.2(b).
In determining whether a prior conviction qualifies as a
predicate offense under the career offender guideline, we apply the
“categorical approach” adopted by the Supreme Court in Taylor v.
United States, 495 U.S. 575, 600-02 (1990). See Bryant, 571 F.3d
at 157 n.7 (acknowledging the application of the categorical
approach in the context of determining whether a state drug
conviction constituted a “controlled substance offense” under the
career offender guideline); Almenas, 553 F.3d at 33 (recognizing
the applicability of the categorical approach to the career
offender guideline).9 In short, “we look to the statutory
9 See also United States v. Giggey, 551 F.3d 27, 38 (1st Cir. 2008) (en banc) (holding that, although Taylor v. United States, 495 U.S. 575 (1990), concerned the Armed Career Criminal Act, the categorical approach may also be applied in interpreting the career offender guideline); United States v. Pelletier, 469 F.3d 194, 202 (1st Cir. 2006) (explaining that Taylor and its progeny “address the appropriate sources for ascertaining the elements of a putative predicate offense when the statute of conviction encompasses both conduct that would constitute a predicate offense and conduct that would not”); United States v. Piper, 35 F.3d 611, 619 (1st Cir. 1994) (recognizing that “[t]he rationale on which the Taylor Court relied in choosing a formal categorical approach is equally applicable to controlled substances offenses” under the career
-17- definition of the offense in question, as opposed to the particular
facts underlying the conviction.” United States v. Piper, 35 F.3d
611, 619 (1st Cir. 1994); see also United States v. DeLuca, 17 F.3d
6, 8 (1st Cir. 1994). If the state statute of conviction
encompasses only conduct that constitutes a predicate offense,
“there is no problem, because the conviction necessarily implies
that the defendant has been found guilty of” a predicate offense.
Taylor, 495 U.S. at 599. However, “in a narrow range of cases,”
id. at 602, where the statute under which the defendant was
convicted encompasses both predicate and non-predicate conduct, we
must look to the “facts that can be mined from the record of
conviction” in order to determine whether the defendant necessarily
was convicted of a crime that constitutes a predicate offense under
the Guidelines. See Magasouba v. Mukasey, 543 F.3d 13, 14 (1st
Cir. 2008) (employing a “modified categorical approach” in
determining whether a state conviction constituted a removable
aggravated felony); United States v. Turbides-Leonardo, 468 F.3d
34, 38—40 (1st Cir. 2006) (applying a modified categorical approach
in determining whether a state drug conviction constituted a “drug
trafficking offense” for the purposes of a sentencing enhancement
under U.S.S.G. § 2L1.2); see also United States v. Savage, 542 F.3d
959, 964—66 (2d Cir. 2008) (applying a modified categorical
offender guideline).
-18- approach in reviewing a district court’s decision to apply a
sentencing enhancement under U.S.S.G. § 2K2.1(a)(2)).
In order to qualify as a “controlled substance offense”
for purposes of the career offender guideline, the drug offense
must be one that is “punishable by imprisonment for a term
exceeding one year, that prohibits 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.
§ 4B1.2(b). As this court previously has noted, the Puerto Rico
statute under which Mr. Dávila-Félix was convicted, in addition to
criminalizing the more obvious drug trafficking offenses, such as
distribution, dispersal and possession with intent to distribute of
controlled substances, also criminalizes actions that are not
commonly considered drug trafficking offenses, such as concealment
of a controlled substance. See P.R. Laws Ann. tit. 24, § 2401;
Turbides-Leonardo, 468 F.3d at 37 n.2.10 Therefore,
Mr. Dávila-Félix’s conviction under the Puerto Rico statute cannot
categorically qualify as a “controlled substance offense” within
the meaning of § 4B1.2(b) because it criminalizes conduct that
falls outside the guidelines definition.
10 The text of this statute is provided, in relevant part, on page 13 of this opinion.
-19- Although the Government alleges that Mr. Dávila-Félix was
convicted for possession of cocaine and marijuana with intent to
distribute, the Government has not established that
Mr. Dávila-Félix necessarily was convicted of a predicate offense
rather than a non-predicate offense such as “intent to conceal.”
Both the Government and the district court described the
offense in question as “possession with intent to distribute
cocaine and marijuana,” see Sent. Tr., 7; Appellee’s Br. at 26—27,
but the details of the prior conviction are not made readily
apparent by the record of the convicting court. See Shepard v.
United States, 544 U.S. 13, 16 (2005) (noting that, when a
defendant has pleaded guilty, the sentencing court may look to the
“statutory definition, charging document, written plea agreement,
transcript of plea colloquy, and any explicit factual finding by
the trial judge to which the defendant assented”); United States v.
Dancy, 640 F.3d 455, 466 (1st Cir. 2011) (explaining that, “if the
state statute encompasses multiple offenses, one or more of which
are not ACCA predicates, ‘a court may look to a restricted set of
documents (e.g., indictment, plea colloquy, jury instructions) to
ascertain which of the multiple offenses served as the offense of
conviction’” (quoting United States v. Holloway, 630 F.3d 252,
256—57 (1st Cir. 2011))). In asserting that the defendant’s June
1993 drug convictions constitute a predicate offense under the
career offender guideline, the Government relies primarily upon the
-20- facts as recounted in the presentence investigation report. This
court has stated that “a presentence report in a subsequent case
ordinarily may not be used to prove the details of the offense
conduct that underlies a prior conviction.” Turbides-Leonardo, 468
F.3d at 39. We therefore conclude that, on the record before us,
the Government has not met its burden of proving that
Mr. Dávila-Félix’s prior drug conviction qualified as a career
offender predicate.
We acknowledge that Mr. Dávila-Félix should have–-but did
not--object to the analysis in the presentence report during the
sentencing proceeding in the district court. There are two
reasons, however, why, under the circumstances presented here, we
ought not consider that failure a waiver in our present disposition
of this appeal. First, we already have concluded that the
Government has waived its argument with respect to its general
career offender waiver argument by conceding during the pendency of
this appeal that the issue is deserving of plain error review.
Consequently, we must also conclude that the Government has waived
its more specific argument with respect to Mr. Dávila-Félix’s
failure to contest his drug convictions. Second, although the
sentencing transcript demonstrates a significant lack of focus, it
is apparent that the district court did not rely on the drug
convictions at sentencing. Here, unlike the situation in
Turbides-Leonardo, the drug convictions were only briefly
-21- referenced and were not discussed or relied upon at sentencing.
Cf. id. at 36-39. Certainly, there was no “ready acquiescence” in
the presentence report’s characterization as we readily found in
Turbides-Leonardo. Id. at 38. We can hardly say, as we did in
Turbides-Leonardo, that the district court “embraced” the
presentence report’s characterization of the drug convictions. Id.
at 37. Consequently, we do not think that, on this record, it is
appropriate, or fair, to hold Mr. Dávila-Félix accountable for
remaining silent on the issue. The standards for plain error
review clearly are met. See United States v. Olano, 507 U.S. 725,
731-37 (1993); United States v. DeCicco, 439 F.3d 36, 44-45 (1st
Cir. 2006).
Conclusion
The district court’s interpretation of the three strikes
provision of 18 U.S.C. § 3559(c)(1) and its interpretation of the
career offender guideline contained in § 4B1.1 of the Sentencing
Guidelines were erroneous. The record provides insufficient
information to justify the imposition of the sentence on the basis
of Mr. Dávila-Félix’s prior drug offenses. Accordingly, the
sentence imposed by the district court is reversed and the case is
remanded for resentencing.
REVERSED and REMANDED.
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