United States v. Rabb
5f4th95
| 1st Cir. | 2021Background
- Rabb sold furanyl fentanyl to a confidential informant, pled guilty to possession with intent to distribute and distribution (21 U.S.C. § 841(a)).
- The government filed a §851 information relying on a 2015 New York drug conviction to seek enhanced penalties, including a mandatory minimum six-year term of supervised release under § 841(b)(1)(C).
- The PSI described the 2015 conviction (date, sentence, later probation revocation) and proposed the six-year mandatory supervised-release term; Rabb did not object to that treatment or to the Information at plea or sentencing.
- At the original sentencing the court classified Rabb as a career offender, imposed 140 months plus six years supervised release; this court vacated the career-offender designation and remanded (Rabb I, 942 F.3d 1).
- At resentencing Rabb again did not challenge the §851 Information or the six-year supervised-release term; the court sentenced him to 84 months plus six years supervised release. Rabb appeals only the six-year supervised-release term.
Issues
| Issue | Rabb's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the district court erred by failing to make an express finding that the 2015 conviction was final for § 841(b)(1)(C) | Court needed an explicit finding of finality to enhance GSR to include six-year mandatory supervised release | Any challenge was waived; in any event the record and the §851 colloquy/PSI show an implicit finality finding sufficient for sentencing | No plain error: absence of an explicit statement was not clear/obvious error; record supports an implicit finding and Rabb showed no reasonable probability of a different sentence |
| Whether Apprendi/Alleyne required jury finding beyond a reasonable doubt of facts surrounding the prior conviction that increased the supervised-release term | Facts supporting the prior conviction increased the penalty and thus were elements requiring jury proof beyond a reasonable doubt | Prior-conviction facts are sentencing factors under Almendarez-Torres and need not be submitted to a jury; following Supreme Court precedent is not plain error | Rejected: Almendarez-Torres controls; no plain error in having the judge rely on the prior conviction at sentencing |
| Whether Rabb waived or forfeited his challenge to the §851 Information | (Implicit) Rabb argues merits should be considered despite procedural posture | Government contends Rabb waived by failing to invoke §851(c) procedures and by affirming the Information at plea and sentencing | Court assumed no waiver for argument's sake but found the substantive claims fail on plain-error review |
Key Cases Cited
- United States v. Rabb, 942 F.3d 1 (1st Cir. 2019) (vacating original sentence based on improper career-offender classification)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing statutory maximum must be submitted to a jury)
- Alleyne v. United States, 570 U.S. 99 (2013) (facts increasing mandatory minimum must be submitted to a jury)
- Almendarez-Torres v. United States, 523 U.S. 224 (1998) (prior convictions are sentencing factors, not elements)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (incorrect Guidelines range can show prejudice under plain-error review)
- United States v. Carbajal-Váldez, 874 F.3d 778 (1st Cir. 2017) (absence of explicit findings is not always fatal when the record as a whole supports the enhancement)
- United States v. Olano, 507 U.S. 725 (1993) (elements of plain-error review)