United States v. Juan Rivera-Constantino
2015 U.S. App. LEXIS 14540
9th Cir.2015Background
- Rivera-Constantino was convicted in 2011 of federal conspiracy to possess with intent to distribute ~195 kg marijuana (21 U.S.C. §§ 846, 841(a)(1)), sentenced and deported, then illegally reentered and was convicted under 8 U.S.C. § 1326.
- At sentencing for illegal reentry, the district court applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1) based on his prior federal drug conspiracy conviction; the court imposed 51 months’ imprisonment.
- Application Note 1 defines "drug trafficking offense" and Application Note 5 states that prior convictions include "aiding and abetting, conspiring, and attempting" such offenses; application notes are binding.
- Rivera-Constantino argued the federal § 846 conspiracy (which requires no overt act) is not the kind of "conspiring" contemplated by Application Note 5, relying on Garcia-Santana, where this court defined the generic conspiracy (in an INA context) to include an overt-act requirement.
- The majority held that the Guidelines’ text, context, and structure plainly encompass federal drug conspiracies under § 846 (no overt act), so the 16-level enhancement properly applied; the opinion affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prior federal conviction under 21 U.S.C. § 846 (drug conspiracy without an overt-act element) qualifies as a "conspiring ... to commit ... a drug trafficking offense" under U.S.S.G. § 2L1.2(b)(1) and cmt. n.5, triggering a 16-level enhancement | Rivera-Constantino: § 846 lacks an overt-act element and Garcia-Santana’s generic definition (requiring an overt act) controls; thus § 846 conspiracy does not fit the "conspiring" description in Note 5 | Government/Majority: Guidelines’ text and Notes plainly encompass federal drug conspiracies; Commission intended to include § 846 conspiracies and not to override Congress’ choice not to require an overt act | The Ninth Circuit held § 846 federal drug conspiracy qualifies under § 2L1.2(b)(1) cmt. n.5; the 16-level enhancement was affirmed |
Key Cases Cited
- Shabani v. United States, 513 U.S. 10 (1994) (federal drug conspiracy statute § 846 does not require proof of an overt act)
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach for defining generic offenses under enhancement statutes)
- United States v. Garcia-Santana, 774 F.3d 528 (9th Cir. 2014) (held the generic definition of conspiracy under the INA requires an overt act)
- United States v. Grajeda, 581 F.3d 1186 (9th Cir. 2009) (de novo review of Guidelines interpretation)
- United States v. Leal-Felix, 665 F.3d 1037 (9th Cir. 2011) (interpretation requires reading the whole Guidelines text and context)
- Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224 (2007) (identical words in same statute normally have same meaning)
- United States v. Rodriguez-Escareno, 700 F.3d 751 (5th Cir. 2012) (App. Note 5 clearly applies to conspiracies to commit federal drug trafficking offenses)
- United States v. Pascacio-Rodriguez, 749 F.3d 353 (5th Cir. 2014) (discussion of whether overt-act requirement applies and interpretation of § 2L1.2)