UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-8533

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BERNELL GARDNER,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

( March 31, 1994 )

Before POLITZ, Chief Judge, HIGGINBOTHAM and DeMOSS, Circuit

Judges.

POLITZ, Chief Judge:

Convicted of possession with intent to distribute crack

cocaine and sentenced to prison for 262 months , Bernell Gardner

appeals, challenging the validity of U.S.S.G. § 4B1.1, the career

offender guideline. We affirm.

The authoritie s seized 24.2 grams of crack cocaine from

Gardner. Under U.S.S.G. § 2D1.1 that quantity would result in an

offense level of 28. Under section 4B1.1, however, because Gardner

was over 18 years old and had two prior violent felony convictions1 United States v. Cockerham , 919 F.2d 286 (5th Cir. 1990).

2 United States v. Matovsky

, 935 F.2d 719 (5th Cir. 1991)

(sentence must be upheld unless imposed: in violation of law;

because of an incorrectly applied guideline; or outside applicable

guidelines). A sentence under a guideline without statutory

authorization would be a sentence imposed in violation of law.

2 his offense level became 34. Gardner's two prior convictions for

voluntary manslaughter would have resulted in a criminal history

category of IV. Section 4B1.1 boosted that classification to VI.

An offense level o f 34 with a criminal history category of VI

results in a sentencing range of 262 to 327 months.

Gardner challenges the validity of section 4B1.1, contending

that Congress authorized increases in career offender c riminal

history scores, but did not empower the Sentencing Co mmission to

increase their offense levels. This objection was not raised in

the trial court; our review is thus limited to a search for plain

error, 1 and we may vacate the sentence only if section 4B1.1 goes

beyond the Commission's statutory authority. 2

Gardner's ultra vires argument rests on his narrow reading of

the career offender statute, 28 U.S.C. § 994(h), which requires the

Commission to promulgate guidelines that "specify a sentence to a

term of imprisonment at or near the maximum term authorized for

categories of defendants in which the defendant" is over 18 and has

been convicted of three violent or drug-related felonies. He urges

that the term "categories of defendants" can only refer to criminal

history categories; therefore, in implementing section 994(h), the

section 4B1.1 enhancement of both the criminal history scores and

the offense level goes beyond the legislative delegation.3 "The Commission s hall assure that the guidelines specify a

sentence to a term of impriso nment at or near the maximum term

authorized for categories of defendants in which the defendant is

eighteen years old or older and " in which the defendant has been

convicted of his third violent or drug-related felony . 28 U.S.C.

§ 994(h).

4 Indeed, Congress authorized the Commission to take into

account such factors as age, education, vocational skills, mental,

emotional, and physical condition, employment, family and community

ties, role in the offense, and criminal history, as it categorizes

d efendants. 28 U.S.C. § 994(d). The challenged statutory

reference to categories is not limited to criminal history scoring.

3 Gardner's reading of the term is based on the following flawed

epagoge: statutes must be construed in an internally consistent

fashion, giving terms the same meaning throughout; sections 994(d)

and (h) both use the term "categories of defendants"; the

Commission created criminal history categories under

section 994( d); therefore, section 994(h) can only refer to

criminal history categories when it uses that term. Gardner thus

concludes that "the plain meaning of section 994(h) is that the

repeat offenders identified by the statute are to be sentenced at

o r near the maximum term for the highest criminal h istory

category." Based on this analysis, according to Gardner, the

Commi ssion was authorized to enhance criminal history scores but

not offense levels.

We are not persuaded that the language of section 994(h)

permits, much less compels, that interpretation. We conclude that

"categories of defendants" as used in section 994(h) refers to

career offenders. 3 The criminal history category is, at most, only

one of the several categories of defendants addressed in various

parts of section 994. 45 U.S.S.G. § 4B1.1, comment; United States v. Pearson

, 910 F.2d

221, 222 (5th Cir. 1990), cert

. denied

, 498 U.S. 1093 (1991);

United States v. Price

, 990 F.2d 1367, 1369 (D.C. Cir. 1993)

(section 994(h) requires Commission to promulgate guidelines which

will produce sentences for career offenders "'at or near the

maximum for the offense charged.'").

4 We would further note that the Commission and the courts have

construed the accompanying phrase "maximum term aut horized" as

meaning the maximum term authorized by statute for the offense

involved. 5 With this in mind, Gardner's interpretation becomes

untenable. Increasing his criminal history category to VI but

keeping his offense level at 28 would result in a guideline

sentencing range of 140 to 175 months, far below the 40-year

statutory maximum provided for the instant offense.

We conclude that section 4B1.1 is authorized by the statute

and, accordingly, is a valid exercise of the power accorded the

Sentencing Commission. The sentence appealed is therefore

AFFIRMED.