1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-31-1994

United States of America v. Hightower

Precedential or Non-Precedential:

Docket 93-5117

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"United States of America v. Hightower" (1994). 1994 Decisions. Paper 31.

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 93-5117 

 

UNITED STATES OF AMERICA 

V. 

KEVIN HIGHTOWER, 

 Appellant 

 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

(D.C. Criminal No. 92-00317-01) 

 

Submitted Under Third Circuit LAR 34.1(a) 

October 8, 1993 

Before: HUTCHINSON, COWEN and NYGAARD, Circuit Judges

(Opinion Filed May 31, 1994) 

DAVID E. SCHAFER, ESQUIRE 

Assistant Federal Public Defender 

United States Courthouse 

402 East State Street, Room 102A 

Trenton, New Jersey 08608 

Attorney for Appellant 

MICHAEL CHERTOFF, ESQUIRE 

EDNA B. AXELROD, ESQUIRE 

R. DAVID WALK, JR., ESQUIRE 

JOHN J. FARMER, JR., ESQUIRE 

Office of United States Attorney 

970 Broad Street 

Room 502 

Newark, New Jersey 07102 

Attorneys for Appellee 

 

 

OPINION OF THE COURT 

 

 
2 

NYGAARD, Circuit Judge. 

 Kevin Hightower pleaded guilty to one count of 

conspiracy to distribute cocaine base, in violation of 21 U.S.C. 

§§ 841(a)(1) and 846, and one count of possession of a firearm by 

a felon, in violation of 18 U.S.C. § 922(g)(1). The district 

court sentenced him as a career offender to 21 years and 10 

months of imprisonment, and Hightower appealed from his judgment 

of conviction and sentence. We affirmed, but later granted 

rehearing to consider whether a defendant convicted of conspiracy 

to distribute a controlled dangerous substance is subject to the 

career offender provisions of the U.S. Sentencing Guidelines.1

Our review is plenary. United States v. Parson, 955 F.2d 858, 

863 (3d Cir. 1992). 

I. 

 Section 4B1.1 of the Sentencing Guidelines classifies a 

defendant as a career offender if: 

 

1 On appeal, Hightower argued that the district court erred 

(1) in determining that his state court convictions were not 

"related cases" for purposes of U.S.S.G. §4A1.2, (2) in deciding 

not to reconsider his selective prosecution claim, and (3) in 

declining to depart downward under U.S.S.G. §4A1.3. We 

concluded, however, that these assertions were without merit. The 

statement in the commentary to section 4A1.2 that prior sentences 

separated by an intervening arrest are not considered related is 

not "inconsistent with, or a plainly erroneous reading of, that 

guideline," Stinson v. United States, 113 S. Ct. 1913, 1915 

(1993); therefore, it is controlling, and Hightower's three 

convictions following separate arrests are not related under 

section 4A1.2. Assuming his second claim is timely and not 

waived, the record below is insufficient to support a claim for 

selective prosecution, and we lack jurisdiction to review 

Hightower's third claim since the district court made a 

discretionary decision not to depart under section 4A1.3. See

United States v. Frazier, 981 F.2d 92, 95-97 (3d Cir. 1992), 

cert. denied, 113 S. Ct. 1661 (1993). 
3 

(1) the defendant was at least eighteen years old at 

the time of the instant offense, (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. The question before us involves the second 

requirement, specifically, the scope of offenses that fall within 

the category of a "controlled substance offense."2 The 

commentary to section 4B1.1 states that: 

28 U.S.C. § 994(h) mandates that the Commission assure 

that certain "career" offenders, as defined in the 

statute, receive a sentence of imprisonment "at or near 

the maximum term authorized." Section 4B1.1 implements 

this mandate. The legislative history of this 

provision suggests that the phrase "maximum term 

authorized" should be construed as the maximum term 

authorized by statute. . . . 

U.S.S.G. §4B1.1, comment. (backg'd.) (emphasis added). Based on 

this commentary, Hightower maintains that the definition of a 

controlled substance offense is circumscribed by the list of 

offenses enumerated in "the statute," 28 U.S.C. § 994(h)(1)(B), 

which does not include conspiracy to distribute a controlled 

substance in violation of 21 U.S.C. § 846. 

 Nevertheless, the commentary to section 4B1.1 also 

states that a controlled substance offense is defined in section 

4B1.2 which provides that: 

The term "controlled substance offense" means an 

offense under a federal or state law prohibiting the 

manufacture, import, export, distribution, or 

dispensing of a controlled substance (or a counterfeit 

substance) or the possession of a controlled substance 

 

2 Hightower was 24 years old at the time of this offense, and his 

prior state court convictions for possession of a controlled 

substance with intent to distribute satisfy the third 

requirement. 
4 

(or a counterfeit substance) with intent to 

manufacture, import, export, distribute, or dispense. 

U.S.S.G. §4B1.2(2). The commentary to section 4B1.2 expands the 

definition to include "the offenses of aiding and abetting, 

conspiring, and attempting to commit such offenses." U.S.S.G. 

§4B1.2, comment. (n.1). Conspiracy to distribute a controlled 

substance is thus included as a predicate offense for sentencing 

under the career offender provisions of the Sentencing 

Guidelines. The question then becomes whether the Sentencing 

Commission exceeded its statutory authority by expanding the 

definition of a "controlled substance offense" beyond those 

offenses specifically listed in 28 U.S.C. § 994(h)(2)(B). 

II. 

 Unlike the guidelines themselves or policy statements, 

the commentary is not directly authorized in the Sentencing 

Reform Act of 1984. See Stinson, 113 S. Ct. at 1917; 28 U.S.C. 

§§ 994(a)(1)-(2); U.S.S.G. Ch.1, Pt.A, §1. In Stinson v. United 

States, 113 S. Ct. 1913 (1993), however, the Supreme Court 

addressed "the authoritative weight to be accorded to the 

commentary to the Sentencing Guidelines." Id. at 1916. Using 

the analogy of "an agency's interpretation of its own legislative 

rule," id. at 1919, the Stinson Court asserted that: 

[C]ommentary in the Guidelines Manual that interprets 

or explains a guideline is authoritative unless it 

violates the Constitution or a federal statute, or is 

inconsistent with, or a plainly erroneous reading of, 

that guideline. 
5 

Id. at 1915; see also United States v. Joshua, 976 F.2d 844, 855 

(3d Cir. 1992) (comparing Sentencing Commission's commentary to 

administrative agency's interpretation of an ambiguous statute). 

 Section 1B1.7 of the Sentencing Guidelines attributes 

the commentary with three different functions: 

First, it may interpret the guideline or explain how it 

is to be applied. Failure to follow such commentary 

could constitute an incorrect application of the 

guidelines, subjecting the sentence to possible 

reversal on appeal. See 18 U.S.C. § 3742. Second, the 

commentary may suggest circumstances which, in the view 

of the Commission, may warrant departure from the 

guidelines. Such commentary is to be treated as the 

legal equivalent of a policy statement. Finally, the 

commentary may provide background information, 

including factors considered in promulgating the 

guideline or reasons underlying promulgation of the 

guideline. As with a policy statement, such commentary 

may provide guidance in assessing the reasonableness of 

any departure from the guidelines. 

U.S.S.G. §1B1.7. The commentary at issue in Stinson was 

"interpretive and explanatory" of a portion of the career 

offender guideline and thus was controlling. See 113 S. Ct. at 

1917-18.3 

III. 

A. 

 In this case, the statutory provision referred to in 

the commentary, 28 U.S.C. § 994(h), provides that: 

 (h) The Commission shall assure that the guidelines 

specify a sentence to a term of imprisonment at or near 

the maximum term authorized for categories of 

defendants in which the defendant is eighteen years old 

or older and-- 

 (1) has been convicted of a felony that is-- 

 

3 The Stinson Court held that the commentary excluding unlawful 

possession of a firearm by a felon as a predicate offense under 

the career offender guideline was binding. Id. at 1920. 
6 

 (A) a crime of violence; or 

 (B) an offense described in section 401 of 

the Controlled Substances Act (21 U.S.C. 

841), sections 1002(a), 1005, and 1009 of the 

Controlled Substances Import and Export Act 

(21 U.S.C. 952(a), 955, and 959), and section 

1 of the Act of September 15, 1980 (21 U.S.C. 

955a); and 

 (2) has previously been convicted of two or more 

prior felonies, each of which is-- 

 (A) a crime of violence; or 

 (B) an offense described in section 401 of 

the Controlled Substances Act (21 U.S.C. 

841), sections 1002(a), 1005, and 1009 of the 

Controlled Substances Import and Export Act 

(21 U.S.C. 952(a), 955, and 959), and section 

1 of the Act of September 15, 1980 (21 U.S.C. 

955a). 

The plain language of the statute thus requires the Sentencing 

Commission to assure that certain offenders receive maximum or 

near-maximum terms of imprisonment. The problem is that a 

"controlled substance offense" is not explicitly defined in 

§ 994(h)(1)(B). 

 The legislative history states that the intent of 

§ 994(h) was to impose "substantial prison terms . . . on repeat 

violent offenders and repeat drug traffickers." S. Rep. No. 225, 

98th Cong., 2d Sess. 175 (1983), reprinted in 1984 U.S.C.C.A.N. 

3182, 3358; see also United States v. Whyte, 892 F.2d 1170, 1174 

(3d Cir. 1989). Furthermore, the Senate Report states that 

subsection (h) is "not necessarily intended to be an exhaustive 

list of types of cases in which . . . terms at or close to 

authorized maxima should be specified." S. Rep. No. 225, 98th 

Cong., 2d Sess. 176 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 

3359; see also Parson, 955 F.2d at 867. 
7 

B. 

 We have held that state court convictions can serve as 

controlled substance offenses under the career offender 

guideline, and that the Sentencing Commission has the authority 

to expand the scope of crimes of violence beyond the original 

congressional definition. In United States v. Whyte, 892 F.2d 

1170 (3d Cir. 1989), the defendant contended that, for purposes 

of the career offender guideline, controlled substance offenses 

were limited to the federal statutes listed in 28 U.S.C. § 994(h) 

and did not include "convictions obtained under similar or 

analogous state statutes." Id. at 1174. Whyte rejected this 

argument, surmising that: 

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. Additionally, the court reasoned that the purpose underlying 

§ 994(h) and the possibility of prosecution under 21 U.S.C. § 841 

for the same conduct weighed in favor of counting the defendant's 

state convictions towards career offender status. Id. In United 

States v. Parson, 955 F.2d 858 (3d Cir. 1992), we concluded that 

§ 994(h) served "as a floor for the career offender category, not 

as a ceiling," id. at 867, and that § 994(h) did not bar the 

Sentencing Commission from including additional predicate 

offenses within the guideline definition of crimes of violence. 

 The Commission's authority to implement sentencing 

policy through the guidelines, however, is not coextensive with 

its authority to do so through commentary. As discussed above, 
8 

the function of commentary is to (1) explain or interpret the 

guidelines, (2) suggest circumstances warranting departure from 

the guidelines and (3) provide background information on the 

guidelines. In contrast, "[t]he guidelines provide direction as 

to the appropriate type of punishment -- probation, fine, or term 

of imprisonment -- and the extent of the punishment imposed." 

Stinson, 113 S. Ct. at 1917. If "commentary and the guideline it 

interprets are inconsistent[,] . . . the Sentencing Reform Act 

itself commands compliance with the guideline." Id. at 1918 

(citing 18 U.S.C. §§ 3553(a)(4), (b)); accord United States v. 

Vea-Gonzales, 999 F.2d 1326, 1330 (9th Cir. 1993); United States 

v. Mandarelli, 982 F.2d 11, 13 (1st Cir. 1992). The Supreme 

Court explained in Stinson that: 

Although amendments to guidelines provisions are one 

method of incorporating revisions, another method open 

to the Commission is amendment of the commentary, if 

the guideline which the commentary interprets will bear 

the construction. Amended commentary is binding on the 

federal courts even though it is not reviewed by 

Congress, and prior judicial constructions of a 

particular guideline cannot prevent the Commission from 

adopting a conflicting interpretation that satisfies 

the standard we set forth today. 

113 S. Ct. at 1919 (emphasis added). 

C. 

 Although we have not addressed the question presented 

in this appeal,4 other courts of appeals have, reaching differing 

 

4 In United States v. Preston, 910 F.2d 81 (3d Cir. 1990), cert. 

denied, 498 U.S. 1103, 111 S. Ct. 1002 (1991), we stated that 

"'crimes of violence' include the offenses of aiding and 

abetting, conspiring, and attempting to commit such offenses." 

Id. at 86 n.6. However, that case involved the Career Criminals 

Amendment Act, 18 U.S.C. § 924(e), not section 4B1.2 of the 
9 

results. In United States v. Price, 990 F.2d 1367 (D.C. Cir. 

1993), the court analyzed the applicability of the career 

offender provisions to a conviction for conspiracy to commit an 

offense against the United States in violation of 18 U.S.C. 

§ 371. The Price court asserted that: 

Price clearly qualified as such [a career offender] 

under the definitions supplied by § 4B1.2 of the 

Guidelines and its Application Notes. However, because 

the Sentencing Commission adopted §§ 4B1.1 & 4B1.2 

solely in an effort to fulfill the mandate of 28 U.S.C. 

§ 994(h), and § 994(h) plainly fails to reach 

conspiracies to commit controlled substance crimes, we 

vacate the sentence and remand the case to the district 

court for resentencing. 

Id. at 1368. Although some courts had accepted without comment 

the commentary's inclusion of conspiracy as a controlled 

substance offense,5 the Price court concluded that the Commission 

had fashioned the career offender provisions "solely as an 

implementation of § 994(h)," and "acted explicitly upon grounds 

that do not sustain its action." 990 F.2d at 1369-70. 

 

Sentencing Guidelines, and the Preston court's interpretation of 

the guidelines was dictum. 

5 See, e.g., United States v. Whitaker, 938 F.2d 1551, 1552 (2d 

Cir. 1991) (conviction for drug conspiracy in violation of 21 

U.S.C. § 846), cert. denied, 112 S. Ct. 977 (1992); United States 

v. Jones, 898 F.2d 1461, 1462 (10th Cir.) (same), cert. denied, 

498 U.S. 838, 111 S. Ct. 111 (1990). We note that other courts 

have simply relied on the commentary as support for including 

conspiracy and attempt as crimes of violence under the career 

offender guideline. See, e.g., United States v. Carpenter, 11 

F.3d 788, 791 (8th Cir. 1993) ("We hold that under the Guidelines 

an attempt is the same as the commission of the substantive 

offense."); United States v. Fiore, 983 F.2d 1, 4 (1st Cir. 1992) 

("conspiracy convictions can serve as predicate offenses under 

the career offender provisions of the federal sentencing 

guidelines"), cert. denied, 113 S. Ct. 1830 (1993); United States 

v. Guerra, 962 F.2d 484, 487 (5th Cir. 1992) ("we should not 

deviate from a plain reading of the guidelines and their official 

commentary"). 
10 

Recognizing that the Commission may have discretionary authority 

under 28 U.S.C. § 994(a) to specify long terms of imprisonment 

for defendants not specifically covered under § 994(h), the Price

court nevertheless held that the commentary to section 4B1.1 was 

"beyond the Commission's authority under § 994(h)." Id. at 1369. 

 In United States v. Heim, 15 F.3d 830 (9th Cir. 1994), 

however, the court explicitly held that "the Sentencing 

Commission did not exceed its statutory authority in including 

conspiracy within the definition of 'controlled substance 

offense' in §§ 4B1.1 and 4B1.2." Id. at 832. The Heim court's 

reasoning was twofold. First, it noted that "[n]owhere in the 

commentary to § 4B1.1 does the Commission suggest that it 

considered § 994(h) to be the sole legal authority for 

promulgating the career offender guidelines." Id. at 832 

(emphasis added).6 Second, the Heim court asserted that "[t]he 

Commission's decision to go beyond the mandate of § 994(h) is 

also consistent with the legislative history to § 994(h)." 15 

F.3d at 832. 

 In United States v. Baker, 16 F.3d 854 (8th Cir. 1994), 

the court agreed that "§ 994(h) does not define the only crimes 

for which the Commission may specify a sentence at or near the 

maximum; it merely declares that the enumerated crimes must be so 

 

6 See also United States v. Mayes, No. 93-3342, 1994 WL 59469, at 

*2 (D. Kan. Feb. 15, 1994) ("mere mention of section 994(h), by 

way of commentary to section 4B1.1, does not make section 994(h) 

the sole authority relied upon by the Commission"); cf. Parson, 

955 F.2d at 867 (suggesting in dicta that Commission could rely 

on other statutory provisions besides § 994(h) as authority for 

the career offender guideline); Whyte, 892 F.2d at 1174 n.11 

(same). 
11 

treated." Id. at 857. The Baker court also expressed "serious 

doubts about Price's conclusion, derived solely from the 

commentary, that the only purpose of the career offender 

Guideline was to implement § 994(h)." Id. Finally, in United 

States v. Liranzo, 944 F.2d 73 (2d Cir. 1991), the court held 

that the defendant's prior conviction for the attempted criminal 

possession of cocaine was a controlled substance offense under 

the "plain language" of the commentary to section 4B1.2 of the 

guidelines. Id. at 78. 

D. 

 We think that the commentary's expansion of the 

definition of a controlled substance offense to include inchoate 

offenses is not "inconsistent with, or a plainly erroneous 

reading of" section 4B1.2(2) of the Sentencing Guidelines, and 

that it does not "violate[] the Constitution or a federal 

statute." Stinson, 113 S. Ct. at 1915. This commentary explains 

how the guideline should be applied, and we therefore hold that 

it is binding. The commentary to section 4B1.1, however, is not 

explanatory or interpretive; rather, this commentary simply 

provides background information on the career offender guideline. 

We decline to interpret the commentary to section 4B1.1 in a way 

that is contrary to the text and legislative history of 28 U.S.C. 

§ 994(h), and which would nullify the commentary to section 

4B1.2. 

IV. 
12 

 For all these reasons, we will affirm Hightower's 

judgment of conviction and sentence.