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Circuit Concludes Inchoate Offenses Satisfy Career Offender Guideline Deepening Circuit Split

In United States v. Richardson, the Second Circuit (Walker, Chin, Menashi) concluded that the defendant’s sentence was both procedurally and substantively reasonable and, therefore, affirmed.  Richardson pleaded guilty to distribution and possession with intent to distribute a controlled substance, under 21 U.S.C. § 841(a)(1), and was sentenced, as a career offender under U.S.S.G. § 4B1.1, to a prison term of 210 months. 

In arguing that his sentence was procedurally unreasonable, Richardson challenged the district court’s application of the Sentencing Guidelines, arguing that he should not have been considered a career offender because the definition of “controlled substance offense” in U.S.S.G. § 4B1.2 does not support the inclusion of inchoate offenses (like conspiracy to distribute, which was one of Richardson’s prior offenses) within that category.  In spite of an Application Note to that Guideline stating that this definition includes inchoate crimes, Richardson argued that the plain language of the Guidelines provision itself could not support this meaning and the application note (which is commentary to the actual Guideline) cannot govern because it is in conflict with the text of the Guideline.  The Circuit disagreed, holding that the note is not inconsistent with the Guideline, and citing prior Circuit decisions for this point.  In so doing, the Second Circuit joins the First, Third, Seventh, Eighth, and Ninth Circuits on one side of a circuit split, with the Sixth and D.C. Circuits on the other side.  Given this conflict—and the fact that the Sixth Circuit’s recent conflicting decision was a unanimously issued en banc ruling overturning settled circuit precedent—it seems possible that the Supreme Court will take up this split within the next few years.  When added to the other issues concerning the vagueness of career offender guidelines, this split further suggests that it is time for Congress to change the career offender guidelines to make them less complicated and fairer to the defendants.

In closing, the Court also rejected Richardson’s argument that one of his prior conspiracy offenses could not serve as a predicate offense because it lacked an “overt act” requirement because the Second Circuit has previously held that the definition of “controlled substance offense” is intended to include narcotics conspiracies.  It similarly dismissed his argument that his sentence was substantively unreasonable, concluding that the district court had imposed a within-Guidelines sentence after consideration of the appropriate sentencing factors.

By Jacob Tuttle Newman and Harry Sandick