United States v. Rodriguez-Rivera, No. 19-1529 (1st Cir. 2021)
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The First Circuit held that a conviction under 21 U.S.C. 846 for conspiring to commit a controlled substance offense qualifies as a conviction for a controlled substance offense under U.S.S.G. 4B1.2(b), even though section 846 does not require proof of an overt act.
Defendant pled guilty to unlawful possession of a firearm as a convicted felon and unlawful possession of a machine gun. In sentencing Defendant, the district court applied a controlled substance enhancement based on Defendant's previous drug distribution conspiracy conviction under 21 U.S.C. 846. On appeal, Defendant argued that his prior conviction did not qualify as a conspiracy offense for purposes of U.S.S.G. 2K2.1 because a conviction under section 846 does not have as an element the commission of an overt act. The First Circuit affirmed, holding that conspiring under section 846 is "conspiring" within the meaning of Application Note 1 to section 4B1.2(b).
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