19

‐ 412

‐ cr

United States v

. Richardson



# In the

**United States Court of Appeals**

FOR THE SECOND CIRCUIT

A UGUST T ERM 2019

No. 19

‐ 412

‐ cr

U NITED S TATES OF A MERICA

, Appellee

,

v.

K OLONGI R ICHARDSON

, Defendant

‐ Appellant

.

On Appeal from the Unite d States District Court

for the Northern District of New York

S UBMITTED : F EBRUARY 3, 2020

D ECIDED : M AY 5, 2020

Before: W ALKER

, C HIN

, and M ENASHI

, Circuit Judges

.

Defendant

‐ Appellant Kolongi Richardson challenges the

procedural and substantive reasonableness of his sentence, imposed

upon his conviction for distribution and possession with intent to

distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1).

The district court (Suddaby, C.J.) did not commit procedural error by2 applying the career offender sentencing enhancement of United

States Sentencing Guidelines § 4B1.1 because Richardson’s prior

convictions of conspiracy to distribute a controlled substance in

violation of 21 U.S.C. §§ 841(a)(1) and 846, and attempted criminal

possession of a controlled substance in violation of N.Y. Penal Law

§ 220.16(1), qualify as “controlled substance offenses,” as defined in

U.S.S.G. § 4B1.2(b). Nor did the district court commit substantive

error because it properly considered Richardson’s criminal history

and adequately accounted for his need for mental health and

substance abuse treatment when it imposed the sentence. We reject

Richardson’s arguments and AFFIRM the judgment.

Rajit S. Dosanjh, Assistant United States Attorney

(Nicolas Commandeur, Assistant United States

Attorney, on the brief ), for Grant C. Jaquith, United States

Attorney for the Northern District of New York,

Syracuse, New York, for Appellee

.

Melissa A. Tuohey, Assistant Federal Public Defender,

for Lisa A. Peebles, Federal Public Defender, Syracuse,

New York, for Defendant

‐ Appellant

.

M ENASHI

, Circuit Judge :

Kolongi Richardson appeals a judgment, entered February 5,

2019, following a guilty plea, sentencing him principally to 210

months’ imprisonment for distribution and possession with intent to

distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1).

On appeal, Richardson challenges the procedural and substantive

reasonableness of his sentence.3 Richardson argues that (1) the district court erred procedurally

when it determined that his prior convictions for conspiracy to

distribute a controlled substance and attempted criminal sale of a

controlled substance qualify as controlled substance offenses under

the career offender guideline, U.S.S.G. § 4B1.2(b), and (2) the sentence

was substantively unreasonable because the court assigned too much

weight to his criminal history and did not adequately account for his

need for mental health and substance abuse treatment. We reject

Richardson’s arguments and affirm the judgment below.

FACTS

On September 21, 2018, Richardson pleaded guilty to

distribution and possession with intent to distribute a controlled

substance in violation of 21 U.S.C. § 841(a)(1). At sentencing, the

district court concluded that Richardson qualified for the career

offender enhancement of U.S.S.G. § 4B1.1 and sentenced him

principally to 210 months’ imprisonment. The Sentencing Guidelines

provide for such an enhancement where, inter alia

, “the instant offense

of conviction is a felony that is either a crime of violence or a

controlled substance offense” and “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 district court found that

Richardson met both criteria—his conviction under 21 U.S.C.

§ 841(a)(1) was a felony controlled substance offense, and he had two

prior felony controlled substance offense convictions. In 2005,

Richardson was convicted of conspiracy to distribute and possession

with intent to distribute cocaine and cocaine base in violation of 21

U.S.C. §§ 841(a)(1) and 846, and in 2012, Richardson was convicted of

attempted criminal possession of a controlled substance in the third

degree in violation of N.Y. Penal Law (“N.Y.P.L.”) § 220.16(1). The4 district court imposed an additional six

‐ year term of supervised

release that included mandatory participation in mental health and

substance abuse programs.

DISCUSSION

This court “review[s] the procedural and substantive

reasonableness of a sentence under a deferential abuse

‐ of

‐ discretion

standard.” United States v. Yilmaz

, 910 F.3d 686, 688 (2d Cir. 2018) (per

curiam). “The procedural inquiry focuses primarily on the sentencing

court’s compliance with its statutory obligation to consider the factors

detailed in 18 U.S.C. § 3553(a), while the substantive inquiry assesses

the length of the sentence imposed in light of the § 3553(a) factors.”

United States v. Castillo

, 896 F.3d 141, 148 (2d Cir. 2018). A sentence is

substantively unreasonable if it is “manifestly unjust” or “shock[s] the

conscience.” United States v. Rigas ( Rigas II ), 583 F.3d 108, 122

‐ 24 (2d

Cir. 2009). We will “set aside a district court’s substantive

determination only in exceptional cases where the trial court’s

decision ‘cannot be located within the range of permissible

decisions.’” United States v. Cavera

, 550 F.3d 180, 189 (2d Cir. 2008) (en

banc) (quoting United States v. Rigas ( Rigas I ), 490 F.3d 208, 238 (2d Cir.

2007)) (emphasis omitted).

When the defendant has preserved a claim that the district

court erred in its application of the sentencing guidelines, “[w]e

review issues of law de novo

, issues of fact under the clearly erroneous

standard, [and] mixed questions of law and fact either de novo or

under the clearly erroneous standard depending on whether the

question is predominantly legal or factual.” United States v. Selioutsky

,

409 F.3d 114, 119 (2d Cir. 2005) (internal citations omitted).5 I

A “controlled substance offense” is “an offense under federal

or state law, punishable by imprisonment for a term exceeding one

year, that prohibits the manufacture, import, export, distribution, or

dispensing of a controlled substance

... with intent to manufacture,

import, export, distribute, or dispense.” U.S.S.G. § 4B1.2. Application

Note 1 to § 4B1.2 further defines “controlled substance offense” to

“include the offenses of aiding and abetting, conspiring, and

attempting to commit such offenses.” U.S.S.G. § 4B1.2 cmt. n.1.

A

Prior to his conviction in this case, Richardson was twice

convicted of felonies relating to drug

‐ trafficking—conspiracy to

distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1)

and 846 and attempted criminal possession of a controlled substance

in violation of N.Y.P.L. § 220.16(1). As Application Note 1 interprets

§ 4B1.2(b), these prior felony convictions qualify as controlled

substance offenses. Nevertheless, Richardson argues that these

convictions are not controlled substance offenses under § 4B1.2(b),

properly understood, because Application Note 1 impermissibly

expands the guideline’s definition of “controlled substance offense”

to include inchoate offenses. According to Richardson, the text of

§ 4B1.2(b) does not bear that interpretation. See Stinson v. United

States

, 508 U.S. 36, 38 (1993) (“[C]ommentary in the Guidelines

Manual that interprets or explains a guideline is authoritative unless

it

... is inconsistent with, or a plainly erroneous reading of, that

guideline.”). This argument is foreclosed by our decision in United

States v. Tabb

, 949 F.3d 81 (2d Cir. 2020). In that case, this court

concluded that United States v. Jackson

, 60 F.3d 128 (2d Cir. 1995),6 which upheld the authority of the Sentencing Commission to adopt

Application Note 1, precludes any further argument “that

Application Note 1 improperly conflicts with the guideline text.”

Tabb

, 949 F.3d at 87. While Jackson focused on the consistency of

Application Note 1 with the authorizing statute rather than the

guideline, this court concluded that “there is no way to reconcile”

Jackson ’s holding with a challenge such as Richardson’s. Id.

Regardless of the scope of Jackson ’s holding, Richardson’s

argument cannot prevail because Application Note 1 is not

“inconsistent with, or a plainly erroneous reading of” § 4B1.2. Stinson

,

508 U.S. at 38. Section 4B1.2 defines “controlled substance offense” as

an offense under federal or state law “that prohibits the manufacture,

import, export, distribution, or dispensing of a controlled substance.”

To “prohibit” means, among other things, “to prevent [or] hinder.”

Prohibit

, Oxford English Dictionary (online ed. 2020); see also United

States v. Lange

, 862 F.3d 1290, 1295 (11th Cir. 2017). The Sentencing

Commission adopted an interpretation of § 4B1.2 that is not

inconsistent with the guideline when it concluded that an offense that

forbids “aiding and abetting, conspiring, and attempting to”

manufacture, import, export, distribute, or dispense a controlled

substance is an offense that “prohibits” those activities. See U.S.S.G.

§ 4B1.2 cmt. n.1. A ban on attempting to distribute a controlled

substance, for example, “hinders” the distribution of the controlled

substance. See Lange

, 862 F.3d at 1295. This conclusion accords with

the majority of circuits that have addressed this question, 1 and it

1 See United States v. Adams

, 934 F.3d 720, 729 (7th Cir. 2019) (concluding

that Application Note 1’s “inclusion of conspiracy d[oes] not conflict with

the text of the Guideline itself”); United States v. Crum

, 934 F.3d 963, 966 (9th

Cir. 2019); United States v. Mendoza

‐ Figueroa

, 65 F.3d 691, 694 (8th Cir. 1995)7 underlies the decision in Tabb that the “purported distinction”

between Jackson ’s holding that the Sentencing Commission had the

authority to include inchoate offenses within the definition of

“controlled substance offense” and the conclusion that Application

Note 1 is not inconsistent with the guideline is “without substance.”

949 F.3d at 87.

B

Richardson also argues that his conviction under 21 U.S.C.

§ 846 cannot serve as a predicate offense under Application Note 1

because Section 846 narcotics conspiracy has no overt act

requirement. This argument also contradicts our holdings in Tabb and

Jackson

. See Tabb

, 949 F.3d at 88 (“The text and structure of Application

Note 1 demonstrate that it was intended to include Section 846

narcotics conspiracy.”); Jackson

, 60 F.3d at 133 (“[D]rug conspiracy

convictions pursuant to 21 U.S.C. [§] 846

... qualify as controlled

substance offenses.”) (citing United States v. Whitaker

, 938 F.2d 1551,

1553

‐ 54 (2d Cir. 1991) (per curiam)). Accordingly, the district court

(en banc) (concluding that Application Note 1 “is a reasonable

interpretation of the career offender guidelines”); United States v. Smith

, 54

F.3d 690, 693 (11th Cir. 1995); United States v. Piper

, 35 F.3d 611, 617 (1st Cir.

1994) (concluding that Application Note 1 “comports sufficiently with the

letter, spirit, and aim of the guideline to bring it within the broad sphere of

the Sentencing Commission’s interpretive discretion”); United States v.

Hightower

, 25 F.3d 182, 187 (3d Cir. 1994). But see United States v. Havis

, 927

F.3d 382, 386

‐ 87 (6th Cir. 2019) (en banc) (“The text of § 4B1.2(b) controls,

and it makes clear that attempt crimes do not qualify as controlled

substance offenses.”); United States v. Winstead

, 890 F.3d 1082, 1091 (D.C.

Cir. 2018) (“Section 4B1.2(b) presents a very detailed ‘definition’ of

controlled substance offense that clearly excludes inchoate offenses.”).8 did not err when it applied the career offender sentencing

enhancement.

II

Richardson also challenges the substantive reasonableness of

his sentence, arguing that the court assigned too much weight to his

criminal history and did not adequately account for his need for

mental health and substance abuse treatment. We conclude that

Richardson’s sentence is not substantively unreasonable because it is

not “manifestly unjust” and does not “shock the conscience.” Rigas II

,

583 F.3d at 122

‐ 24. The district court imposed a within

‐ Guidelines

sentence after considering the § 3553(a) factors, including

Richardson’s personal and criminal history and the need for the

sentence imposed. The district court observed that while Richardson

had experienced “terrible” family trouble as well as mental health and

substance abuse challenges, his past criminal conduct—including

drug trafficking, an escape from federal prison, and illegal gun

possession—was serious and persisted despite repeated intervention

by law enforcement. J. App’x 128

‐ 34. In light of these circumstances,

the district court’s decision to sentence Richardson to 210 months’

imprisonment fell well within the range of permissible decisions. See

United States v. Thavaraja

, 740 F.3d 253, 259 (2d Cir. 2014).

Accordingly, we conclude that Richardson’s sentence is substantively

reasonable.

CONCLUSION

We AFFIRM the district court’s judgment because

Richardson’s sentence was both procedurally and substantively

reasonable.