United States v. Silvestre M. Rivera

996 F.2d 993, 93 Daily Journal DAR 8015, 93 Cal. Daily Op. Serv. 4712, 1993 U.S. App. LEXIS 15121, 1993 WL 219195

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 24, 1993
• Docket: 92-10063
• Status: Published

Opinions

T.G. NELSON, Circuit Judge:

OVERVIEW

The defendant in this case, Silvestre May-orquin Rivera (“Rivera”), entered into a plea agreement in which he pled guilty to four counts of bank robbery in violation of 18 U.S.C. § 2113(a). The district court sentenced Rivera to 168 months in prison followed by thirty-six months of Supervised release. Rivera timely appeals that sentence on three separate grounds, arguing that the district court erred in: (1) sentencing him as a career offender; (2) failing to make a downward departure from the Sentencing Guidelines; and (3) sentencing him to fourteen years in prison when 18 U.S.C. § 3581 only authorizes a maximum of twelve years for a Class C felony.

The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.

BACKGROUND

Rivera committed several bank robberies in Arizona and California between September, 1990, and March, 1991, when he was finally apprehended with the aid of a tracking device. In April, 1991, he was indicted by a federal grand jury in Arizona for one count of bank, robbery. In August, 1991, a federal grand jury in the Central District of California indicted Rivera for three counts of bank robbery. Subsequently, the California proceedings were transferred to the Arizona District Court pursuant to Fed.R.Crim.P. 20. On September 9, 1991, an information was filed against Rivera in the Arizona District Court charging him with an additional count of bank robbery. All bank robbery charges alleged violations of 18 U.S.C. § 2113(a).

In exchange for Rivera’s guilty plea to four counts of bank robbery, the Government dropped the other bank robbery charge. The district court calculated Rivera’s sentence pursuant to the Sentencing Guidelines. It determined that Rivera had an offense level of thirty and a criminal history category of six. The district court then sentenced Rivera as a career offender pursuant to U.S.S.G. § 4B1.1, basing its determination upon a prior robbery conviction and a prior state conviction for- possession of narcotics for sale.¹ The Sentencing Table specified a range of 168 to 210 months imprisonment for the above categories and the district court sentenced Rivera to the lower figure, 168 months.

During sentencing, the district court rejected Rivera’s argument that 18 U.S.C. § 3581 authorizes a maximum sentence of twelve years and ruled 18 U.S.C. § 2113(a) was the governing statute, authorizing a twenty-year maximum penalty. The district court also refused to make a downward departure.

DISCUSSION

A. Career Offender Status

Rivera’s appeal revolves around his prior state drug conviction. He contends that the Sentencing Commission (“Commission”) exceeded its delegated authority by permitting prior state convictions to serve as predicate offenses for career offender status. He argues that because prior state convictions are not specifically enumerated in 28 U.S.C. § 994(h), the Commission did not respect the plain, unambiguous language of the statute when it included in the Sentencing Guidelines prior state convictions as the basis for career offender status.

We review de novo the district court’s interpretation of the Sentencing Guidelines. United States v. Blaize, 959 F.2d 850, 851 (9th Cir.), cert. denied, — U.S. -, 112 S.Ct. 2954, 119 L.Ed.2d 576 (1992). In reviewing the Commission’s interpretation of the underlying statute, we must determine whether the Sentencing Guideline is “sufficiently reasonable” in light of the congressional directive to the Commission. United States v. Nelson, 919 F.2d 1381, 1382 (9th Cir.1990). Finally, we review the district court’s factual findings during sentencing for clear error. United States v. Chapnick, 963 F.2d 224, 226 (9th Cir.1992).

A defendant is sentenced as a career offender if: (1) he or she is eighteen years old or older; (2) the instant conviction is either a crime of violence or a controlled substance offense; and (3) the defendant has two or more prior felony convictions, each of which is either a crime of violence or a controlled substance offense. 28 U.S.C. § 994(h); U.S.S.G. § 4B1.1 (Nov. 1, 1990). Only the third element involving prior felony convictions is at issue in this case.

Section 994(h)(2)(B) provides that controlled substance offenses are those “described in” certain federal statutes² which prohibit the manufacture, distribution, import, export, or possession of controlled substances. Pursuant to the Sentencing Guidelines a “ ‘[p]rior felony conviction’ means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed.” U.S.S.G. § 4B1.2, comment. (n. 3) (Nov.1990) (emphasis added). The Guidelines define a “controlled substance offense” as “an offense under a federal or state law prohibiting the manufacture, import, export, or distribution 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, or • distribute.” U.S.S.G. § 4B1.2(2) (Nov. 1, 1990) (emphasis added). Finally, § 994(h) mandates that the “guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants [satisfying the three elements outlined above].” 28 U.S.C. § 994(h).

Whether the Sentencing Guidelines are consistent with the congressional mandate in allowing prior state convictions to serve as the basis for career offender status is a matter of first impression in this Circuit. Our task here is not to interpret the enabling statute; rather, we must determine whether the Guidelines, in allowing prior state convictions to serve as the basis for career offender status, are “sufficiently reasonable” in light of the congressional directive to the Commission. Nelson, 919 F.2d at 1382. Section 994(h) of the statute is ambiguous. As the Government points out, if Congress had wanted to restrict the statute’s reach to federal convictions, it could easily have said that predicate offenses are limited to federal law. It is equally true that Congress could have said predicate offenses are calculable whether they violate state or federal law. The question is whether a contrary interpretation of the statute is so clear that the Commission was not sufficiently reasonable in its interpretation of § 994(h).

The Third Circuit rejected a similar challenge to this provision of the Sentencing Guidelines. United States v. Whyte, 892 F.2d 1170 (3rd Cir.1989), cert. denied, 494 U.S. 1070, 110 S.Ct. 1793, 108 L.Ed.2d 794 (1990). In doing so, it said:

We believe that the entire guideline is authorized, if not required, by section 994(h). The text of that statute, although not completely unambiguous, cuts against [the defendant’s] position. If Congress had wanted only convictions under particular federal statutes to serve as predicate offenses, it could have said so quite simply. Instead, Congress referred to “offenses described in” — not “convictions obtained under” — those statutes.

Id. at 1174 (emphasis added). In Whyte the court reasoned that the statutory language suggests predicate offenses are not limited to federal offenses, but rather they include conduct that could have been charged federally. Id.

We find the position of the Third Circuit persuasive. In determining whether the Commission’s interpretation is reasonable, we also find two additional facts convincing. First, when Congress adopted subsection (h) of § 994, it emphasized that “the guidelines development process can assure consistent and rational implementation of the Committee’s view that substantial prison terms should be imposed on repeat violent offenders and repeat drug traffickers.” S.Rep. No. 225, 98th Cong., 2d Sess. 175 (1984), reprinted in 1984 U.S.C.C.A.N 3182, 3358. In view of this directive, it was reasonable for the Commission to include prior state convictions as a basis for career offender status. Such an interpretation not only ensures consistent application of the career offender provision, but it imposes substantial prison terms upon repeat drug traffickers who violate either state or federal drug laws. The fact that a defendant has a prior state conviction should not exempt him from career offender status when a prior conviction for violating an analogous federal law would result in career offender status. Such an outcome would not provide consistent application of the statute, nor would it impose substantial prison terms upon repeat drug traffickers in accord with the congressional directive.

Second, we find instructive a congressional amendment to one of the drug offense statutes ³ specifically enumerated in § 994(h)(2)(B) which permits “the enhancement of maximum penalties for controlled substance offenses to include a prior state felony drug conviction within the definition of a prior felony conviction.” United States v. Sanchez-Lopez, 879 F.2d 541, 560 (9th Cir.1989) (citing S.Rep. No. 225, 98th Cong., 2d Sess., reprinted in 1984 U.S.C.C.A.N. 3182, 3440-41) (emphasis added). This amendment suggests that the career offender provision focuses upon setting penalties based on the conduct, whether it violated federal or state law.

Section 994(h)(2)(B) provides that offenses “described in” the federal statutes listed in that subsection serve as predicates for career offender status. If Congress had intended only federal offenses to serve as predicates for career offender status, it could have done so by providing that only “convictions obtained under” the federal statutes would be the basis for career offender status. The fact that Congress used the words “described in” indicates the focus is not upon whether the predicate offense is federal or state; rather, the focus is upon the type of conduct involved. As we have previously stated, in the “context of the career offender provision, Congress specifically delineated the types of individuals and conduct which should be a part of the career offender provision.” Sanchez, 879 F.2d at 560 (emphasis added) (rejecting defendant’s argument that Guidelines involve unlawful sub-delegation of authority to the states because state as well as federal convictions trigger career offender status). In Sanchez, although we did not decide the precise issue presented here, we upheld the application of career offender status on the basis of two prior state drug convictions. Id.

The Commission’s interpretation of § 994(h) to include prior state convictions is not unreasonable because the statute focuses upon the individual and the type of conduct involved. Such an interpretation ensures an application of the career offender provision consistent with the type of conduct Congress intended to penalize, as opposed to an application based upon whether the prior conviction violates a federal or state statute. As Whyte reasoned, the language of § 994(h) suggests that the predicate drug convictions need not be federal as long as they are for conduct that could have been charged federally. Whyte, 892 F.2d at 1174.

Because it is not at all clear that Congress intended to exclude state convictions from the definition of “prior felony conviction,” we cannot say the Commission’s interpretation is unreasonable. Therefore, we hold that the Commission’s interpretation of § 994(h)(2)(B), allowing prior state convictions to serve as the basis for career offender status, is “sufficiently reasonable” in light of the congressional mandate. Nelson, 919 F.2d at 1382.

Finally, Rivera argues that the rule of lenity should apply in this case, thereby favoring a construction of the statute which yields the shorter sentence. It is true we have held that “ ‘ambiguities in criminal statutes must be resolved in favor of lenity.’” United States v. Helmy, 951 F.2d 988, 996 (9th Cir.) (quoting United States v. Batchelder, 442 U.S. 114, 121, 99 S.Ct. 2198, 2203, 60 L.Ed.2d 755 (1979)), cert. denied, — U.S. -, 112 S.Ct. 2287, 119 L.Ed.2d 211 (1992). However, 28 U.S.C. § 994 is not a criminal statute in the sense that it proscribes certain conduct. Section 994 is a part of the Act of Congress which established the Sentencing Commission and it directs the Commission to “promulgate and distribute” the Sentencing Guidelines. Thus, as in Nelson, we are asked to decide whether the Sentencing Commission’s interpretation of its charge is “sufficiently reasonable”: “In reviewing an agency’s interpretation of a statute, the appellate court makes a narrow inquiry into whether the agency’s construction is ‘sufficiently reasonable.’ The agency’s interpretation need not be the only reasonable one.” Nelson, at 1382 (internal citation omitted). We do not substitute our view of the statute for that of the Commission.

The rule of lenity also pertains to interpretations of the Sentencing Guidelines. See id. Our task in this case is to determine whether the Commission’s interpretation of the career offender statute is sufficiently reasonable in light of the congressional directive. Because we have concluded that the Guideline is sufficiently reasonable, we need only apply the rule of lenity to the Guideline if § 4B1.2 is ambiguous. Section 4B1.2 is not ambiguous. It clearly defines “prior felony conviction” to include prior state convictions. U.S.S.G. § 4B1.2, comment, (n. 3). Consequently, application of the rule of lenity is not called for in this instance.

B. Donmward Departure

Rivera claims that because the district court has discretion to depart downward from the career offender guideline when a defendant’s criminal history category significantly overrepresents the seriousness of his criminal history, the district court erred in failing to consider the circumstances surrounding his prior convictions as the basis for a downward departure. However, we reject Rivera’s argument because we lack jurisdiction to review a district court’s discretionary refusal to downward depart from the Sentencing Guidelines. United States v. Morales, 898 F.2d 99 (9th Cir.1990) (dismissing the appeal because the district court’s refusal to downward depart is not subject to appellate review).

Rivera relies upon United States v. Dickey, 924 F.2d 836, 839 (9th Cir.), cert. denied, — U.S. -, 112 S.Ct. 383, 116 L.Ed.2d 334 (1991), in support of his position that we must remand his case for resentencing. In Dickey we held that if the district court’s refusal to depart downward is a discretionary act, we have no jurisdiction to review that decision; but if, on the other hand, the district court finds as a matter of law that it has no authority to depart, we must review the decision de novo. Dickey, 924 F.2d at 839.

In Dickey, however, we remanded because it was not clear from the record whether the district court had merely refused to exercise its discretion, or whether the court had concluded as a matter of law that it could not depart downward: “Since we are unable to determine from the record whether the district court’s ruling on this issue was an exercise of its discretion or a legal ruling, we must remand for clarification on this question.” Id. Dickey is distinguishable from this case because here the record does reflect the district court’s discretionary refusal to depart downward from the guidelines.

In a case similar to the present one, we held that the record indicated the district court’s discretionary refusal to make a downward departure. United States v. Williams, 898 F.2d 1400, 1403 (9th Cir.1990). The district court judge in Williams had concluded: “ T do not find that I have the authority [to depart] in this case, nor do I find facts which would lead me to believe I should depart.’ ” Id. We held that “[t]his latter finding constitutes a discretionary refusal to depart. It is sufficient to support the sentence, and we are without jurisdiction to review it.” Id.

After reviewing the record in this ease, we conclude that the district court did not rule as a matter of law that it had no authority to make a downward departure. See Dickey, 924 F.2d at 839; see also Williams, 898 F.2d at 1403. As in Williams, the district court in this case concluded that under the circumstances, it would not depart downward from the Sentencing Guidelines. In reaching this conclusion, it exercised its discretionary authority. Therefore, we lack jurisdiction to review the district court’s discretionary refusal to downward depart.

C. Maximum Sentence

Rivera concedes that the career offender statute mandates “a term of imprisonment at or near the maximum term authorized.” 28 U.S.C. § 994(h). He contends, though, that the maximum term is authorized by 18 U.S.C. § 3581 which sets the maximum term at twelve years for a Class C felony. Thus, he argues, because bank robbery is a Class C felony, the district court erred in sentencing him to 168 months (fourteen years) which is two years in excess of the twelve year maximum.

We review de novo the district court’s sentence and interpretation of federal statutes. United States v. Schiffbauer, 956 F.2d 201, 202 (9th Cir.), cert. denied,. — U.S. -, 113 S.Ct. 274, 121 L.Ed.2d 202 (1992). Our decision in Schiffbauer forecloses Rivera’s argument. Id. at 202-203.

In Schiffbauer the defendant pled guilty to robbery in violation of § 2113(a)⁴ and argued that § 3581(b)⁵ limited his sentence to twelve years. We held that § 3559(b),⁶ and not § 3581(b), applies when sentencing a defendant convicted of bank robbery under § 2113(a). Id. at 203. In reaching that conclusion, we relied upon an earlier decision in which we had held that the letter classification sentencing scheme in sections 3559(a) and 3581(b) did not apply to a first degree murder offense set forth in 18 U.S.C. § 1111 because the latter statute designated its own mandatory life sentence. United States v. LaFleur, 952 F.2d 1537 (9th Cir.), amended on other grounds, 971 F.2d 200 (1991), cert. denied, — U.S. -, 113 S.Ct. 1292, 122 L.Ed.2d 683 (1993).

Schiffbauer stated that the penalties in § 3581(b) “apply only to offenses that are assigned letter classifications in the statutes describing them.” Schiffbauer, 956 F.2d at 203. Because Congress did not designate a letter classification in the robbery statute (§ 2113(a)), we reasoned that § 3581(b) does not apply to the bank robbery offense. Id. Therefore, § 3559(b) applies to statutes such as the bank robbery statute which include a maximum sentence within its terms: “Thus, the plain language of section 3559(b) states that all of the incidents of the letter grading system shall apply ‘except that the maximum term of imprisonment is the term authorized by the law describing the offense.’ ” Id. (emphasis in original).

In this case, Rivera was sentenced to fourteen years in prison, less than the maximum twenty-year term authorized by § 2113(a). Therefore, his sentence was consistent with both § 2113 and § 3559(b).

AFFIRMED.

1 . Rivera entered an Alford plea to the narcotics conviction. North Carolina v. Alford, 400 U.S. 25, 37-39, 91 S.Ct. 160, 167-168, 27 L.Ed.2d 162 (1970) (defendant may plead guilty without admitting commission of crime). However, the fact that Rivera entered an Alford plea goes to the weight of the evidence and not its admissibility.

2 . The specific statutes listed in § 994(h)(2)(B) include the following: 21 U.S.C. § 841, 21 U.S.C. §§ 952(a), 955, & 959, and 21 U.S.C. § 955a.

3 . The statute amended was 21 U.S.C. § 841 prohibiting the manufacture, distribution, and possession of controlled substances.

4 . The bank robbery statute under which Rivera was convicted sets the maximum prison term at twenty years. 18 U.S.C. § 2113(a).

5 . Section 3581(b) authorizes a maximum prison term of twelve years for Class C felonies. 18 U.S.C. § 3581(b).

6 .Section 3559(b) provides that "[a]n offense classified under subsection (a) carries all the incidents assigned' to the applicable letter designation, except that the maximum term of imprisonment is the term authorized by the law describing the offense." 18 U.S.C.’§ 3559(b) (emphasis added).