United States v. Rivera-Constantino, No. 14-10314 (9th Cir. 2015)
Annotate this CaseIn 2011, defendant was convicted for conspiracy to possess with intent to distribute approximately 195 kilograms of marijuana, in violation of 21 U.S.C. 946. In 2014, defendant was convicted of illegal reentry and the district court imposed a 16-level sentencing enhancement based on his prior conspiracy conviction under U.S.S.G. 2L1.2(b)(1). The court held that a federal drug trafficking conspiracy conviction is a conviction for conspiracy to commit a drug trafficking offense. The court concluded that it need not rely on a generic definition analysis because the plain meaning of section 2L1.2(b)(1) and related commentary is to encompass 21 U.S.C. 846 as a predicate offense. Accordingly, the district court properly applied the sentencing enhancement and the court affirmed the judgment.
Court Description: Criminal Law. Affirming a sentence for illegal reentry, the panel held that a prior federal conviction for conspiring to possess marijuana with intent to distribute, 21 U.S.C. §§ 846, 841(a)(1), constitutes a prior conviction for “conspiring[ ] . . . to commit” a “drug trafficking offense” as that phrase is used in the commentary to U.S.S.G. § 2L1.2(b)(1), thereby making a defendant subject to a 16-level enhancement under § 2L1.2(a)(1)(A). The panel rejected the defendant’s argument that because his prior federal conspiracy conviction did not require an overt act, it was not technically a “conspiracy” within the meaning of § 2L1.2, cmt. n.5. The panel wrote that it need not rely on a generic definition analysis because the plain meaning of § 2L1.2(b)(1) and related commentary is to encompass § 846 as a predicate offense. Dissenting, Judge Paez would hold that where a prior conspiracy conviction under § 846 does not require proof of an overt act, it does not qualify categorically as a drug trafficking offense for purposes of the § 2L1.2(b)(1)(A)(i) enhancement. UNITED STATES V. RIVERA-CONSTANTINO 3
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