APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. (D.C. Criminal No. 92-00317-01).
Before: Hutchinson, Cowen and Nygaard, Circuit Judges.
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.*fn1 Our review is plenary. United States v. Parson, 955 F.2d 858, 863 (3d Cir. 1992).
Section 4B1.1 of the Sentencing Guidelines classifies a defendant as a career offender if:
(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."*fn2 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 (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 ...