En Banc Eleventh Circuit Says Conspiracy to Commit Federal Drug Offense Didn’t Count for Career Offender Sentence

The U.S. Court of Appeals for the Eleventh Circuit, sitting en banc, joined three other circuits and held that a federal conviction for conspiracy to commit a federal drug offense did not qualify under the career offender guideline as a third strike to impose the harsh career offender penalty. See United States v. Dupree, 57 F.4th 1269 (11th Cir 2023) (en banc).

Brandon Dupree had two prior state drug convictions when he was convicted of conspiracy to distribute cocaine and heroin, under 21 U.S.C. § 846, and being a felon in possession of a firearm and using that firearm in furtherance of the drug conspiracy, under 18 U.S.C. §§ 922(g) and 924(c). The district court found that the two priors plus his instant federal drug conspiracy conviction qualified him for the career offender sentence. While Dupree didn’t contest his two prior convictions, he did object to the use of his instant conviction to impose the career offender sentence. He argued that the career offender guideline defining a “controlled substance offense,” USSG § 4B1.2, did not say anything about attempts or conspiracies to commit a drug offense, and that since the guideline was unambiguous the sentencing court could not defer to the Application Note 1 which said that conspiracies and attempts did qualify.

The Eleventh Circuit noted that it had previously held that conspiracies and attempts to commit a federal drug offense (an “inchoate” offense) could be used under the career offender guideline simply because Application Note 1 expressly said so. But the Supreme Court recently decided Kisor v. Wilke, 139 S. Ct. 2400 (2019), holding that unless a government agency’s rule was ambiguous, a federal court could not defer to the agency’s interpretation of the rule. The Eleventh Circuit said this applied to the U.S. Sentencing Commission’s Guidelines, which are rules the agency has created, and the application notes are the USSC’s interpretation of those rules.

Finding that § 4B1.2 was not ambiguous but, instead, clearly defined what a controlled substance offense was, the federal court was not allowed to defer to Application Note 1 which said that drug conspiracies and attempts could be used. In short, because § 4B1.2’s definition did not include anything about inchoate drug offenses, they could not be used, the Court held and vacated Dupree’s career offender sentence.

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