Public Defense

An Offer to Sell Drugs Is Not a "Controlled Substance Offense" Under Guideline §4B1.2(b); Interesting Discussion of Plain Error

By Brad Bogan

We know from United States v. Garza-Lopez that an offer to sell drugs is not a "drug trafficking offense" under guideline §2L1.2. And we know from United States v. Gonzales that a Texas conviction for delivery of a controlled substance isn't categorically a §2L1.2 DTO because the definition of "delivery" applicable to the Texas drug statutes includes an "offer to sell." Price holds that the same thing goes for the "controlled substance offense" definition found in guideline §4B1.2(b), because it's substantively identical to §2L1.2's DTO definition.

That much of Price is unremarkable, since it's simply a straightforward application of Gonzales. The more important part of the opinion concerns the third prong of plain error review. And for that, we need some background.

Price was convicted of being a felon in possession of a firearm. The district court applied a base offense level of 24 under guideline §2K2.1(a)(2), which applies "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." After all was said and done, the Guidelines slide rule spit out a range of 110 to 120 months. The district court sentenced Price at the bottom of the range.

Now as it turns out, one of Price's two priors was a Texas delivery of cocaine. His indictment for that offense alleged an offer-to-sell as one of the possible means of delivery, and the judgment didn't specify which means of delivery his guilty plea admitted. Price raised this on plain error review. Following Gonzales, the court of appeals held that the offense didn't constitute a CSO.

Absent the error, Price would have been looking at a Guidelines range of no more than 92 to 115 months. The court held that even though the 110-month sentence Price received was within that range, the error nevertheless affected Price's substantial rights, the third element of plain error. And on this point the court acknolwedged a "potential conflict" in the Fifth Circuit's pre- and post-Booker case law. Prior to Booker, the court held that there's no plain error if the district court could impose the same sentence on remand---an objective inquiry. After Booker, in United States v. Villegas, the court adopted a subjective approach, holding "that the question of substantial rights turns on 'whether the defendant can show a reasonable probability that, but for the district court?s misapplication of the Guidelines, [the defendant] would have received a lesser sentence.'"

The court here ultimately held that Price demonstrated ?at least a reasonable probability that the district court would have imposed a lesser sentence if it had properly applied the Guidelines[,]? for two reasons: 1) although Villegas didn't involve overlapping ranges, the spread between the bottom end of the correct and erroneous ranges was greater in Price's case than it was in Villegas, and there was plain error in Villegas; and 2) the district court here imposed the low end of what it erroneously believed to be the correct range. The court added that "with more of an overlap between correct and erroneous sentencing ranges, we would face a closer question of 'substantial rights' and would have to address the potential conflict between the pre- and post-Booker objective verus subjective inquiries that we raised in Jones. We leave that for another day."

Full post as published by Fifth Circuit Blog on February 01, 2008 (boomark / email).